[Senate Hearing 110-941]
[From the U.S. Government Publishing Office]
S. Hrg. 110-941
COERCIVE INTERROGATION TECHNIQUES: DO THEY WORK, ARE THEY RELIABLE, AND
WHAT DID THE FBI KNOW ABOUT THEM?
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JUNE 10, 2008
__________
Serial No. J-110-98
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
53-740 WASHINGTON : 2009
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Stephanie A. Middleton, Republican Staff Director
Nicholas A. Rossi, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 123
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 1
prepared statement........................................... 125
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 159
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 4
WITNESSES
Caproni, Valerie E., General Counsel, Federal Bureau of
Investigation, Washington, D.C................................. 9
Cloonan, John E., retired Special Agent, West Caldwell, New
Jersey......................................................... 32
Fine, Glenn A., Inspector General, Department of Justice,
Washington, D.C................................................ 7
Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law
School, Cambridge, Massachusetts............................... 40
Sands, Philippe, QC, Professor of Law and Director of the Centre
of International Courts and Tribunals, University College
London......................................................... 37
QUESTIONS AND ANSWERS
Responses of Valerie Caproni to questions submitted by Senators
Kennedy, Feingold and Schumer.................................. 51
Responses of John (Jack) Cloonan to questions submitted by
Senator Kennedy................................................ 65
Responses of Glenn A. Fine to questions submitted by Senators
Schumer, Feingold and Kennedy.................................. 67
Responses of Philip B. Heymann to questions submitted by Senator
Kennedy........................................................ 73
Responses of Philippe Sands to questions submitted by Senator
Kennedy........................................................ 108
SUBMISSIONS FOR THE RECORD
Caproni, Valerie E., General Counsel, federal Bureau of
Investigation, Washington, D.C., statement..................... 112
Cloonan, John E., retired Special Agent, West Caldwell, New
Jersey, statement.............................................. 116
Fine, Gleen A., Inspector General, Department of Justice,
Washington, D.C., statement.................................... 130
Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law
School, Cambridge, Massachusetts, statement.................... 144
Legal Analysis of Interrogation Techniquies...................... 161
Sands, Philippe, AC, Professor of Law and Director of the Centre
of International Courts and Tribunals, University College
London, statement and attachment............................... 164
Whitehouse, Sheldon, a U.S. Senator from the State of Rhode
Island, Intelligence hearing transcript........................ 206
COERCIVE INTERROGATION TECHNIQUES: DO THEY WORK, ARE THEY RELIABLE, AND
WHAT DID THE FBI KNOW ABOUT THEM?
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TUESDAY, JUNE 10, 2008
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:36 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Dianne
Feinstein, presiding.
Present: Senators Feinstein, Feingold, Schumer, Durbin,
Cardin, Whitehouse, and Specter.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM
THE STATE OF CALIFORNIA
Senator Feinstein. I would like to quickly announce that
there are five votes at 11 o'clock. Our witnesses this morning
and I think the members are aware of that. My plan would be to
recess the Committee at 11, and if we are not concluded, we
will be able to recess and reconvene here at 2 o'clock in the
afternoon.
I might say this: For me, this is a very important hearing.
I serve on the Intelligence Committee, so I am well aware of
enhanced interrogation techniques. And the question before us
is a very difficult and important subject: coercive
interrogations and torture.
Historically, the United States has been steadfast in its
resolve that torture is unnecessary, unreliable, and un-
American. Without torture, we succeeded in conflicts that
threatened the very existence of our country, including a Civil
War, a World War, and numerous other conflicts and enemies.
Despite President Bush's promise that the United States
would fight the war on terror consistent with American values
and ``in the finest traditions of valor,'' the administration
decided, as the Vice President said in 2001, to ``go to the
dark side''--to use coercive interrogation.
This decision by the Bush administration has had profound
effects.
Cruel, inhuman, and degrading treatment of prisoners under
American control I believe violates our Nation's laws and
values. It damages our reputation in the world, and it serves
as a recruitment tool for our enemies. Perhaps more
importantly, it has also limited our ability to obtain reliable
and usable intelligence to help combat the war on terror,
prevent additional threats, and bring to justice those who have
sought to harm our country.
I have listened to the experts, such as FBI Director
Mueller, DIA Director General Maples, and General David
Petraeus. All insist that even with hardened terrorists, you
get more and better intelligence without resorting to coercive
interrogations and torture.
The bottom line is that there are many interrogation
techniques that work, even against al Qaeda, without resorting
to torture. One of today's witnesses, former FBI Special Agent
Jack Cloonan, has personally interrogated members of al Qaeda
within the confines of the Geneva Conventions and obtained
valuable, reliable, and usable intelligence.
Mr. Cloonan was involved in the interrogation of Ibn al-
Sheik Al-Libi, the first high-profile al Qaeda member captured
after September 11th, and Ali Abdul Saud Mohammed, one of Osama
bin Laden's trainers. In both cases, the FBI used non-coercive
interrogations to obtain valuable information about al Qaeda. I
look forward to Mr. Cloonan's testimony about how the non-
coercive interrogation techniques used by the FBI work to
provide reliable and usable intelligence.
The FBI has long recognized the unreliability of
information obtained from coercion and torture. It has based
its belief on years of experience and behavioral science. This
hearing will examine how non-coercive interrogation techniques
can be used effectively and why coercive interrogations and
torture do not yield reliable and useful intelligence for the
most part.
The hearing will also review the recently released
Department of Justice Inspector General's report detailing the
FBI's knowledge and involvement in the coercive interrogation
techniques and torture that occurred in Guantanamo,
Afghanistan, and Iraq after the September 11, 2001, attack.
Both Senator Specter, our Ranking Member today, and I have
heard numerous times the Inspector General report on the FBI,
and let me just say I believe he is a very square shooter and
one of our finest Inspector Generals.
To its credit, the FBI was steadfast in its unwillingness
to use coercion and torture as a means to obtain information.
FBI agents on the ground at Guantanamo and other sites
repeatedly voiced concerns about the harsh interrogations being
conducted by military and DOD interrogators. In total, over 200
FBI agents raised these concerns. For that, the FBI should be
commended.
Questions remain, however, about why FBI leadership was not
notified more quickly about the agents' concerns at Guantanamo
and why formal guidance was not provided to FBI agents in the
field until May of 2004-2 years after the first complaints were
received at FBI Headquarters about coercive interrogations. I
hope Mr. Fine and Ms. Caproni, the legal counsel of the FBI,
can address these issues.
The FBI should also be credited for raising the alarm to
the Department of Defense about what was happening at
Guantanamo. We now know that as early as October 2002, FBI
agents at Guantanamo alerted Marion Bowman, the FBI's Deputy
General Counsel in charge of national security, about coercive
interrogations occurring at Guantanamo. On November 27, 2002,
an FBI agent at Guantanamo sent a written legal analysis
questioning the legality of coercive interrogations and noting
that these techniques appeared to violate the U.S. torture
statue.
In November and December 2002, Mr. Bowman personally
contacted officials in the DOD General Counsel's office,
including General Counsel Jim Haynes, about the FBI's concerns.
According to Mr. Bowman, Haynes claimed he did not know
anything about the coercive interrogation techniques that were
occurring at Guantanamo, despite the fact that he recommended
on November 27, 2002, that Secretary Rumsfeld formally approve
the very techniques that were being used at Guantanamo.
Clearly, there are questions that need to be answered
regarding how the interrogation policies at Guantanamo were
formulated and authorized, whether they were from the bottom
up, as the Administration has stated, or from the top down, as
the evidence is beginning to show. Whose idea was it? Who was
consulted? And when complaints were raised about what was
happening at Guantanamo, what was done?
Historically, the Bush administration has argued that the
military commanders and JAG lawyers on the ground requested the
initial authorization and provided the legal justification to
use coercive interrogation techniques against detainees. In
June of 2006, in testimony before this Committee, then-DOD
General Counsel Jim Haynes said that the request to use these
harsh interrogation techniques was made by the commanding
general at Guantanamo, and that the request ``came with a
concurring legal opinion of his Judge Advocate.''
Yet, as time goes by and more facts come out, the
administration's explanation has become increasingly
discredited. More and more evidence shows that the decision to
use coercive interrogation techniques was made at the highest
levels of the Bush administration.
Just a moment on the timeline:
On August 1, 2002, the DOJ Office of Legal Counsel
completed the so-called Yoo-Bybee memos providing a legal
justification for coercive interrogation techniques and
torture.
On September 25 and 26, just about a month later, a month
and a half, DOD General Counsel Haynes, White House Counsel
Alberto Gonzales, and Vice Presidential Counsel David Addington
visited Guantanamo and witnessed detainee interrogations.
On November 23, 2002, Secretary of Defense Rumsfeld
verbally authorized harsh interrogations of Muhammad Al
Qahtani, a high-value detainee at Guantanamo.
On November 27, 2002, Haynes recommended that Secretary
Rumsfeld formally authorize coercive interrogation techniques
at Guantanamo.
On December 2, 2002, Secretary Rumsfeld approved, in
writing, the coercive interrogations at Guantanamo.
Philippe Sands, who is testifying today--and I very much
appreciate the fact he has come from London to provide this
testimony, and this is one of the reasons that if we are not
concluded, we will recess at 11 and come back at 2:00--has
interviewed many of the Bush administration officials involved
in the authorization to use coercive interrogation techniques
at Guantanamo, including former DOD General Counsel Jim Haynes.
He has asked to take the oath, because he wants to be sure that
everybody knows he will be telling us the truth as he knows it.
And I will administer the oath at that time.
I look forward to hearing what he has learned about how the
decision to use coercive interrogations and torture was made in
the Bush administration.
It is absolutely essential that we obtain reliable and
usable intelligence to successfully fight the war on terror. I
believe it is wrong to use coercive interrogation and torture
to try to accomplish that goal. I believe we must stop it, and
as a member of the Intelligence Committee, I am doing
everything I can think of to do just that.
It is also imperative, however, that we examine how
complaints about coercive interrogations were handled by the
FBI and how those harsh interrogation techniques were first
authorized.
So I would like now, if I might, to turn it over to my very
distinguished Ranking Member. I am delighted that you are
apparently substituting for Senator Kyl today. I thank you very
much for being here as Ranking Member of the entire Judiciary
Committee, Senator Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Well, thank you, Madam Chairwoman. I do
not believe that I am substituting for anybody. I am the
Ranking Member. This is my position. So I am glad to be here on
this--
Senator Feinstein. All right. Thank you.
Senator Specter [continuing]. Very important subject.
Senator Feinstein. I misspoke. I did not realize this is a
full Committee hearing. I thought it was my Subcommittee
hearing. But I am delighted as such to give you due deference,
and I do so immediately.
Senator Specter. I am not that concerned about deference,
due or not, but I think you should note that you are the
Chairman of the full Committee today, so your status is a
status which has been clarified. But on to the subject.
This is obviously a very, very important hearing to have an
airing and public disclosure as to what our interrogation
techniques are. There is no doubt that torture is against the
law of the United States, the Geneva Convention, and it ought
not to be countenanced in any way, shape, or form. We have the
famous Bybee memorandum, which has been thoroughly discredited.
We have voted on issues like waterboarding, where I voted
against having waterboarding as a technique. And as Senator
Feinstein has noted, there is obviously a very, very high value
on getting important intelligence information.
The war on terrorism is with us all the time. We do not
have to talk about the ravages of 9/11 or about terrorism
around the world, and it is an ongoing threat. And we need
strong law enforcement techniques, but they have to be balanced
at all times--at all times--against constitutional rights. And
this Committee has been very diligent on a whole range of
analyses.
We have taken up the expansion of Executive power with the
Terrorist Surveillance Program. My sense is that decades from
now, historians will look back upon this period in our history
for the very vast increase of Executive power. And, finally, we
brought the Terrorist Surveillance Program under the
jurisdiction of the Foreign Intelligence Surveillance Court.
Senator Feinstein and I labored long and hard to structure some
legislation on that subject. We have seen the signing
statements where the executive branch has disregarded the will
of Congress. We have seen grave problems on rendition, on state
secrets, and it is an ongoing battle. And Congress has not been
very effective, in my judgment, on restraining the expansion of
Executive authority. Candidly, neither have the courts.
I was very disappointed when the Supreme Court of the
United States denied cert. on the litigation challenging the
constitutionality of the Terrorist Surveillance Program. It was
declared unconstitutional by a Federal judge. In a 2-1
decision, the Sixth Circuit said there was no standing, and the
Supreme Court denied cert. We could have used some help on the
standing issue. That is just one case where the executive
branch has insisted that Article II powers as Commander-in-
Chief enable the President to disregard the statutes, the
Foreign Intelligence Surveillance Act, just as the
administration has disregarded the National Security Act of
1947 in not informing the Intelligence Committees as to what
was going on.
And now we have the habeas corpus issue, where the Supreme
Court has in effect ducked the issue. We have the Boumediene
case where the District of Columbia Circuit ignored the Rasul
decision, waiting to see if habeas corpus will be reinstated on
what in my legal judgment was a clear-cut opinion by Justice
Stevens, that habeas corpus is grounded in the Constitution as
well as in the statute.
I make these comments in a broader context of our efforts
to restrain Executive authority. And when you come down to the
focus as to interrogation techniques, there obviously has to be
greater restraint than what the executive branch has
undertaken.
It was my hope that we would have General Hayden testify
here today. There is a debate in the intelligence agencies
about the various levels of responsibility of what the Army
needs to do by way of interrogation defined by the Army Field
Manual, contrasted with what the FBI does, which is
significantly different, contrasted yet again with what the CIA
does, which is significantly different.
There have been representations that these interrogation
techniques have yielded very, very valuable information to
prevent terrorist attacks. Candidly, I have not seen that. And
perhaps it has to be disclosed in a closed session, but those
are issues which we have to weigh carefully. But it is a great
credit to our system that we have a former FBI agent, Jack
Cloonan, stepping forward to blow the whistle, in effect, about
what is going on with the intelligence tactics at Guantanamo.
It is a credit to our system that the Inspector General, Mr.
Fine, and counsel, Ms. Caproni, come forward with critical
analysis and that this Committee is ready to put a microscope
under what is being done.
We have Phil Heymann, former Deputy Attorney General, who
has written extensively on this subject and has offered a
somewhat different opinion that highly coercive interrogation
techniques that fall short of torture may be necessary and
legal, but only if strict guidelines are in place. Well, let's
explore that. Let's explore what the guidelines should be and
what are those highly coercive interrogation techniques are
permissible which fall short of torture.
We all agree that torture is illegal and ought not to be
countenanced. You have very extensive writing by a notable
civil libertarian, Professor Alan Dershowitz from Harvard, who
talks about torture warrants and going to a judicial official.
We talk about presenting the matter to the highest authorities
in our civil government, including the President of the United
States. And we talk about the so-called ticking bomb case. What
do you do if hundreds of thousands of people are about to be
killed? So we are dealing in very, very deep water, and this
ought to have a very heavy glare of congressional analysis. And
we are going to try to do that today and in the future.
I am 37 seconds over, Madam Chairwoman. I hope that does
not foul up the timing too much.
Senator Feinstein. Yes, I am surprised by that. Thank you
very much, and it is good to have you here.
Senator Specter. Thank you.
Senator Feinstein. I would like to ask Senator Whitehouse--
we serve together on the Intelligence Committee and have worked
together on these issues and, I think, see things similarly.
Senator Whitehouse, would you like to make a statement?
Senator Whitehouse. Thank you, Chairman. I just want to
congratulate you on holding this hearing and express my
appreciation that the Ranking Member is here. As you know,
months ago when I proposed the first limitation on the CIA's
use of these abusive techniques, the only Senator who
cosponsored it was you, Chairman, and it was your amendment
that ended up passing in the Intelligence authorization, and
you have been in the Committee, both behind closed doors and in
public, very firm and strong in your views on the subject. And
it has been an inspiration for this new Senator to see you in
action, and I appreciate that this is going on.
I would like to ask, do you remember we had an interesting
hearing in the Intelligence Committee in which a colonel who
had 22 years of interrogation experience with the United States
Air Force Special Operations Command testified about the
relative value of abusive techniques versus effective
techniques? I think you and I were perhaps the only people left
in the Intelligence hearing at the time that that evidence was
taken. But it has been declassified, and I would ask unanimous
consent that it be made a part of the record of this hearing.
Senator Feinstein. Without objection.
Senator Whitehouse. And I thank Chair for her courtesy and
for this hearing.
Senator Feinstein. Thank you very much.
We will now proceed with panel No. 1. I would like both Mr.
Fine and Ms. Caproni, if possible, to summarize. We do have a
5-minute rule. I am going to change it today, but, please,
recognize that we have a vote at 11, and we would like to start
with the second panel. And so I would appreciate your being
relatively concise.
There will be 7-minute rounds for the Committee, and we
will follow the early-bird rule, alternating between sides.
So if I may begin with you, Mr. Fine, I would like to
introduce you. You have served as the United States Inspector
General for the Department of Justice since December 15, 2000.
You are charged with conducting independent investigations,
audits, and inspections of the United States Department of
Justice personnel and programs. Your office recently released a
report reviewing the FBI's involvement in and observations of
detainee interrogations in Guantanamo, Afghanistan, and Iraq.
Prior to becoming Inspector General, Mr. Fine worked in the
Office of the Inspector General for over a decade. He has also
served as an Assistant United States Attorney.
At this time, I would like to introduce Valerie Caproni as
well. She has served as the General Counsel of the FBI's Office
of General Counsel since August of 2003. She is responsible for
advising FBI officials on all legal issues, including national
security law and terrorism. Prior to joining the FBI's General
Counsel Office, Ms. Caproni worked as a regional director for
the Securities and Exchange Commission. Over the course of her
career, she has had extensive experience in both the private
and public sector, including time as an Assistant U.S. Attorney
in the Eastern District of New York.
Welcome, Mr. Fine. Welcome, Ms. Caproni. Mr. Fine, if you
would begin.
STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, U.S. DEPARTMENT
OF JUSTICE, WASHINGTON, D.C.
Mr. Fine. Thank you, Madam Chairwoman, Senator Specter,
members of the Committee. Thank you for inviting me to testify
about the Office of the Inspector General's report on the FBI's
involvement in and observations of detainee interrogations in
Guantanamo Bay, Afghanistan, and Iraq. As part of our
investigation, the OIG team surveyed over 1,000 FBI employees
who were deployed overseas to one of the military zones between
2001 and 2004. In addition, the team interviewed more than 230
witnesses and reviewed more than half a million pages of
documents. Our team also made two trips to Guantanamo.
Our investigation focused on detainee treatment in
facilities under the control of the Department of Defense. With
limited exceptions, we were not able to investigate the
observations of FBI employees regarding detainees held at CIA
facilities. In my testimony this morning, I will briefly
summarize some of our major findings. In line with the subject
of this hearing, I will also focus on the FBI's decision not to
participate in joint interrogations of detainees with other
agencies who were using techniques not permitted by the FBI.
Our investigation found that the vast majority of the FBI
agents deployed to the military zones adhered to FBI policies.
FBI officials and agents told us that the FBI's approach,
coupled with a strong substantive knowledge of al Qaeda, had
produced extensive useful information in both pre-September
11th terrorism investigations as well as in the post-September
11th context. DOJ officials also said they agreed with the
FBI's approach.
FBI agents, however, encountered interrogators from other
agencies who used aggressive interrogation techniques. In
August 2002, FBI Director Mueller decided that the FBI would
not participate in the joint interrogation of detainees with
other agencies in which techniques not allowed by the FBI were
used. This policy was established as a result of the
interrogation of Abu Zubaydah, who was captured in Pakistan in
March 2002 and interrogated at a CIA facility. We determined
that FBI agents observed the CIA use techniques that
undoubtedly would not be permitted under FBI interview
policies.
The head of the FBI's Counterterrorism Division at the
time, Pasquale D'Amuro, gave the OIG several reasons for the
FBI's position. First, he said he believed that the military's
aggressive techniques were not as effective for developing
accurate information as the FBI's rapport-based approach, which
he stated was used successfully to obtain cooperation from al
Qaeda members.
Second, D'Amuro said that the use of aggressive techniques
failed to take into account an ``end game.'' He stated that
even a military tribunal would require some standard for
admissibility of evidence.
And, third, D'Amuro stated that using these techniques
helped al Qaeda in spreading negative views of the United
States.
Our investigation found that in 2002, the friction between
the FBI and the military increased regarding the interrogation
of Muhammad Al Qahtani at Guantanamo. The FBI advocated a long-
term rapport-based strategy, while the military insisted on a
different, more aggressive approach. Despite the FBI's
objections, the military proceeded with its interrogation plan
for Al Qahtani. The techniques used on him during this time
period included stress positions, 20-hour interrogations, tying
a dog leash to his chain and leading him through a series of
dog tricks, stripping him naked in the presence of a female,
repeatedly pouring water on his head, and instructing him to
pray to an idol shrine.
We were unable to determine definitively whether the
concerns of the FBI and the Department of Justice about DOD
interrogation techniques were addressed by any of the Federal
Government's interagency groups that resolve disputes about
antiterrorism issues. Several senior Department of Justice
officials told us that the DOJ raised concerns about particular
DOD practices in 2003 with the National Security Council and
the DOD. We found no evidence that these concerns influenced
Department of Defense interrogation policies. Ultimately, the
DOD made the decisions regarding what interrogation techniques
were used by military interrogators because the detainees were
held in DOD facilities and the FBI was there in a support
capacity.
As part of our review, we also examined the training that
FBI agents received regarding issues of detainee interrogation.
In May 2004, following the Abu Ghraib disclosures, the FBI
issued written guidance stating that the FBI personnel may not
participate in interrogation techniques that violate FBI
policies regardless of whether the co-interrogators were in
compliance with their own policies. We concluded that while the
FBI eventually provided some guidance to its agents about
conduct in military zones, FBI headquarters did not provide
timely guidance or fully respond to requests from its agents
for additional guidance.
We also investigated several specific allegations that FBI
agents participated in abuse of detainees in connection with
interrogations in military zones. In general, we did not
substantiate these allegations. We found that most FBI
employees adhered to the FBI's traditional interview strategies
in the military zones
In conclusion, we believe that while the FBI could have
provided clearer guidance earlier and could have pressed harder
its concerns about detainee abuse by other agencies, the FBI
should be credited for its conduct and professionalism and for
generally avoiding participation in detainee abuse.
That concludes my testimony, and I would be pleased to
answer any questions.
[The prepared statement of Mr. Fine appears as a submission
for the record.]
Senator Feinstein. Thank you very much, Mr. Fine.
Ms. Caproni.
STATEMENT OF VALERIE E. CAPRONI, GENERAL COUNSEL, FEDERAL
BUREAU OF INVESTIGATION, WASHINGTON, D.C.
Ms. Caproni. Good morning, Madam Chairwoman, Ranking Member
Specter, and members of the Committee. It is my pleasure to
appear before you today to discuss with the Committee the FBI's
knowledge of interrogation techniques used by other agencies.
The FBI is pleased that the Office of the Inspector General
credited the FBI in its recent report on this subject for its
``...conduct and professionalism in the military zones of
Guantanamo Bay, Afghanistan, and Iraq.''
As you know, the primary mission of the FBI is to lead law
enforcement and domestic intelligence efforts to protect the
United States and its interests from terrorism. FBI
intelligence derived from Iraq, Afghanistan, and Guantanamo Bay
has led to numerous investigations to identify and disrupt
terrorist threats in the United States and has provided
important intelligence in ongoing investigations.
We were gratified to read the conclusion of the IG that
``the vast majority of FBI agents in the military zones
understood that existing FBI policies prohibiting coercive
interrogation tactics continued to apply in the military zones
and that they should not engage in conduct overseas that would
not be permitted under FBI policy in the United States.''
The FBI decided in 2002 that, regardless of what other
agencies might be authorized to do, the FBI would continue to
apply FBI interrogation policies regardless of where the
interrogation was occurring and regardless of who was being
interrogated. The IG's report confirmed that our agents
complied with that policy with very few exceptions.
Significantly, the IG found no instance in which an FBI agent
participated in the sort of clear detainee abuse that some
members of the military used at Abu Ghraib prison.
Consistent with the FBI's long history of success in
custodial interrogations, FBI policy is to employ non-coercive,
rapport-based interview techniques, whether we are questioning
detainees captured in a military zone or individuals arrested
in the United States. The most significant difference between
interviews of foreign detainees and interviews of defendants
under arrest in the United States is that foreign detainees are
generally not read Miranda warnings.
As the IG's report makes clear, the FBI Director determined
in 2002 that the FBI would not participate with other
Government agencies in joint interrogations in which techniques
that would not be permissible in the United States were used.
That decision was consistent with the FBI's longstanding belief
that the most effective way to obtain accurate information is
to use rapport-building techniques in interviews.
After the Abu Ghraib disclosures, the FBI issued written
policy which reaffirmed existing FBI policy and reminded FBI
agents that they were prohibited from using coercive or abusive
techniques, regardless of whether the technique was authorized
by any other agency. The policy also directed agents that they
were not to participate in any treatment or interrogation
technique that is in violation of FBI guidelines and that they
were required to report any incident in which a detainee was
abused or mistreated. All allegations of detainee mistreatment
during the course of interrogations were reviewed by FBI
headquarters and referred to the appropriate agency for
investigation.
In short, we are proud of the fact that FBI agents acted
consistently with our policies despite the existence of
circumstances where it might have been very easy to go along
with other agencies' techniques in the interest of interagency
harmony. The FBI will continue to use rapport-building
techniques when conducting interviews in the military zones
because we believe these techniques are the most efficacious
way to obtain reliable information during interrogations.
I appreciate the opportunity to appear before the Committee
and look forward to your questions. Thank you.
[The prepared statement of Ms. Caproni appears as a
submission for the record.]
Senator Feinstein. Thank you very much. The order will be
myself, Senator Specter, early bird, Senator Whitehouse, and
then Senator Feingold--oh, Senator Feingold was here before
Senator Whitehouse? All right. Senator Feingold, then Senator
Whitehouse.
Mr. Fine, if I could begin, in your report, did you get any
information about FBI agents observing waterboarding?
Mr. Fine. No. We talk about the FBI's involvement with the
interrogation of Abu Zubaydah. They did not witness
waterboarding. I think the CIA has subsequently acknowledged
waterboarding Zubaydah, but they did not report to us that they
witnessed that conduct.
Senator Feinstein. Did any of them comment on long periods
of isolation?
Mr. Fine. Yes, isolation was a tactic used by the military,
and there were periods of isolation, sometimes more than 30
days, that were used in Guantanamo.
Senator Feinstein. And on Al Qahtani, what information do
you have on how long he has been held in isolation?
Mr. Fine. I am not sure he was one that was the subject of
the long-term isolation. There was a whole series of tactics
used on him. Isolation was not the most coercive tactic used on
him.
Senator Feinstein. Okay. Now, you pointed out or your
report points out that over 200 agents observed or heard
military interrogators using a variety of harsh techniques, and
you spell them out: stress positions, short shackling, the
isolation, growling military dogs, twisting thumbs back, using
a female interrogator to touch or provoke a detainee in a
sexual manner. And these allegations were made public in FBI e-
mails that were obtained by the ACLU through Freedom of
Information requests.
The report also states that these agents expressed strong
concern about what they observed to senior officials at FBI
headquarters and that, in early 2003, FBI agents continued to
raise objections and sought guidance, but no response was
forthcoming.
Finally, on May 19, 2004, FBI General Counsel finally
issued an official policy on what FBI agents should do if they
saw coercive or abusive techniques.
I would like you to explain, if you can, what happened to
concerns or complaints that were raised prior to when the
official policy was finally issued, who received them, how did
they go up the chain of command, what was done to follow up on
them, and have they ever been dealt with.
Mr. Fine. We talk about that in the report in that the
concerns originally arose when the Abu Zubaydah case and the Al
Qahtani case, the concerns were raised to FBI headquarters.
They eventually resulted in the policy that Director Mueller
instituted that the FBI agents were not to participate--
Senator Feinstein. Two years later.
Mr. Fine. Well, that happened in 2002, August of 2002, and
the concerns continued. We did find that the concerns went to
the Department of Justice, that there were senior officials in
the Department of Justice who heard about the concerns and
raised the concerns with the Department of Defense, and we also
heard that they raised it with the National Security Council.
The issue that was raised, though, from the interviews that
we conducted, was more an issue of effectiveness. Was this an
effectiveness tactic to obtain reliable and accurate
information? They raised the concerns with the Department of
Defense, but the Department of Defense, from what we were told,
dismissed those concerns and no changes were made in the
Department of Defense's strategy. Ultimately, it was the
Department of Defense's decision. These detainees were under
their control. The Department of Justice and the FBI believed
that the Department of Defense tactics that were used were not
effective and should have been changed, but they were not
successful in--
Senator Feinstein. Did you raise them with the Department
of Justice?
Mr. Fine. Did?
Senator Feinstein. Did the FBI raise those concerns with
the Department of Justice?
Mr. Fine. Yes, with officials in the Criminal Division, and
ultimately we heard that even Attorney General Ashcroft heard
about the concerns, particularly with regard to Al Qahtani and
raised those codncerns. We were not able to definitively find
out what he did because he declined our request to interview
him.
Senator Feinstein. Did Department of Justice at any time
say that those techniques were legal?
Mr. Fine. Well, that is an issue about what the Office of
Legal Counsel has done and its legal opinions, and you talked
about the Bybee-Yoo memo. There are other classified memos. So
it was--
Senator Feinstein. No, I am not talking about the memos. We
are now, fortunately, all aware of them.
Mr. Fine. Right.
Senator Feinstein. I am talking about when these reports
came in and somebody in the upper echelons of the FBI--and I
will get to who in a minute--called Justice, I would assume
they called Justice to say, ``Is this legal? '' What I am
asking is what was the answer that came back.
Mr. Fine. What we were told was that the concerns mostly
related not to the legality of it, but to the effectiveness of
it. That is what the people told us that the concerns that were
raised--
Senator Feinstein. Well, why would they raise effectiveness
with DOJ?
Mr. Fine. Pardon me?
Senator Feinstein. Why would they raise effectiveness with
Justice?
Mr. Fine. Because Justice is the component overseeing the
FBI and had participation in interagency councils, and the FBI
believed that these techniques were not getting actionable
information, that they were unsophisticated and unproductive,
and that they asked the Department of Justice to get involved.
Senator Feinstein. Now, how far up the line at the FBI did
these complaints go?
Mr. Fine. In general, the complaints went to the
Counterterrorism Division. We talked about it going up higher
and that there were some--the concerns were raised at the
highest levels, not constant concerns or not in lots of
specificity, but particularly with regard to Al Qahtani, those
concerns were raised at high levels.
Senator Feinstein. Did they reach the Director?
Mr. Fine. He recalled general concerns. I do not think he
recalled in specifics and in clear detail, but he was aware of
concerns about the Department of Defense interrogation tactics.
Senator Feinstein. And what did the Director do about those
concerns?
Mr. Fine. The first thing he did was institute the policy
that the FBI was not to participate in it. In terms of further
issues, it is not clear that he was the one who was raising the
concerns over to the Department of Defense; rather, we found
that officials in the Counterterrorism Division, the Military
Liaison and Detainee Unit, and also Spike Bowman, raised
concerns with other agencies.
Senator Feinstein. Could one conclude--and I am just asking
this question now--that Director Mueller raised these concerns
and was rebuffed and, therefore, decided that the FBI would not
cooperate in these interrogations?
Mr. Fine. I think what we were told was that when the
concerns were raised, he made that decision for the reasons
that Pasquale D'Amuro stated that I stated in my oral
statement. I do not think it was because he was rebuffed. I
think it was because he decided that this was not something
that the FBI should participate in.
Senator Feinstein. Thank you very much.
Can you tell me how many reports were made?
Mr. Fine. How many?
Senator Feinstein. Yes.
Mr. Fine. It is not clear how many reports were made, but
there were concerns being raised--
Senator Feinstein. Are we talking about dozens of reports
coming back?
Mr. Fine. Well, the reports would go through the on-scene
commander. The on-scene commander would sometimes raise it in
the Counterterrorism Division. The problem was that the people
did not know what was authorized and what was not authorized,
and at some point they assumed these tactics were authorized.
So they sort of stopped making complaints about them because
they did not know what was authorized and what was not
authorized.
Senator Feinstein. Thank you very much.
Senator Specter.
Senator Specter. Mr. Fine, there is a clear distinction as
to what the FBI's duty was on the issue of not engaging in
these kinds of interrogation techniques and blowing the whistle
on them. Now, what did the FBI do by way of blowing the
whistle? And the really critical factor, as I listened to your
testimony, is how far it went up the chain of command and
precisely what did Director Mueller do. It seems to me that
where the FBI witnesses interrogation techniques which the FBI
believes are improper, perhaps even illegal, perhaps even
torture, that there is a duty to take it to the top. And that
requires not generalizations but did you interview Director
Mueller?
Mr. Fine. Our investigators did interview Director Mueller.
Senator Specter. I asked you if you interviewed Director
Mueller.
Mr. Fine. No.
Senator Specter. Why not?
Mr. Fine. Because our investigation was conducted by
trained investigators. I do not conduct the investigations. All
the investigations we participated in--
Senator Specter. Okay. The trained investigators questioned
him. Did they ask him specifically whom he reported these
abusive tactics to?
Mr. Fine. I believe they asked him if he made reports of
this.
Senator Specter. But wait a minute. I do not want to know
what you believe. This is a very critical question. It seems to
me that if the Director is to be acting properly and he finds
out something that is going on which is improper or illegal, he
ought to take it up with the Attorney General, and he ought to
find out what the Attorney General is doing about it. And if he
is not satisfied with what the Attorney General is doing about
it, he ought to take it up with White House Counsel, or he
ought to take it up with the President. The FBI Director has
access to the President. What are the specifics? What did
Mueller say or at least what was Mueller asked?
Mr. Fine. I think what Director Mueller said, Senator
Specter, was that he was aware that the legality of this was
being assessed by the Department of Justice, it was changing;
that there were people in the Department of Justice, the Office
of Legal Counsel, who were blessing some of these tactics; and
that the Department of Justice had reviewed it and as a result,
he decided that his agents would not be involved with this.
Senator Specter. Well, it seems to me that that is
insufficient. To say that the practices were changing--your
words--that is not to say that they were changed. That is not
to say that they were stopped.
Now, you made a brief comment about Attorney General
Ashcroft specifically. What did your investigation show as to
what Attorney General Ashcroft was told?
Mr. Fine. We were informed that Attorney General Ashcroft
was aware of the complaints, mostly in terms of the
effectiveness of the tactics that were being used.
Senator Specter. Well, could you be more specific? Did your
investigators question Ashcroft?
Mr. Fine. No. We asked to, and he declined our request for
an interview.
Senator Specter. So when he declined, what did you do about
that?
Mr. Fine. We asked the people around him. We asked--we
interviewed Deputy Attorney General Thompson. We interviewed
Michael Chertoff. We interviewed--
Senator Specter. You asked the Deputy Attorney General, and
what did he say--Thompson?
Mr. Fine. He did not remember the complaints or the
specific complaints--
Senator Specter. He did not remember the complaints?
Mr. Fine. No.
Senator Specter. Did not amount to much in Thompson's
opinion?
Mr. Fine. I don't know about that, but he did not remember
the specific complaints coming to him.
Senator Specter. Well, it seems to me that the
investigation--and this is a critical point. You make a
distinction in your concluding statement that the FBI could
have provided clearer guidance, but they should be credited
with generally avoiding participation in detainee abuse. It
seems to me it is not sufficient not to participate in improper
or illegal conduct; that if they see it, they ought to blow the
whistle and do what is necessary to stop it. Isn't that the way
it ought to be done?
Mr. Fine. I think that is a fair statement, Senator
Specter, and one of the things I did say was not only should
they have provided clearer guidance, but they could have
pressed harder their concerns. I think they should have pressed
harder their concerns.
Senator Specter. Well, to say that they should have pressed
harder is not to say very much. On your testimony, they did not
press much at all.
In your judgment, Mr. Fine, were the tactics used by DOD
torture?
Mr. Fine. We did not do a legal analysis of this based
upon--
Senator Specter. You did not do a legal analysis?
Mr. Fine. No. What we--
Senator Specter. Why not?
Mr. Fine. Because that is not our role as the Inspector
General. Our role is to provide the facts and to discuss what
happened and discuss what the FBI witnessed--
Senator Specter. Well, you have got a lawyer, you have got
a General Counsel to make a legal judgment.
Mr. Fine. That is correct, and also I am a lawyer. But our
role is to provide the facts and to provide reports on this.
Senator Specter. Let me ask you--my time is growing short.
Let me ask you to review the facts and give this Committee a
conclusion. Give us a conclusion as to whether DOD tactics were
torture. You are a lot closer to it than we are. We have got 7
minutes to sift through a lot of material. I would like to know
what your conclusions are.
How about in 26 seconds, Mr. Fine? We have got a lot of
time for these--it does not amount to a whole lot. How about
the ticking bomb situation which we theorize about so much?
There is an opinion by an Israeli dissenting justice and there
are comments by some pretty noted people about unusual
circumstances if there is a ticking bomb and hundreds of
thousands of people are in jeopardy of being killed. Is there
any circumstance which would warrant these excessive
interrogation tactics?
Mr. Fine. I can envision certain circumstances, but the
problem with that is, you know, were they used widespread and
not in a ticking time bomb context, and that is the concern
that I would have and the concern that--
Senator Specter. So you think it would be appropriate to
have an exception in the ticking bomb circumstance?
Mr. Fine. I certainly think we ought to consider that and
establish processes and procedures to deal with it.
Senator Specter. We ought to consider that? We are
considering it. I want your judgment. In a ticking bomb
circumstance, should we use these excessive interrogation
tactics?
Mr. Fine. I am not sure. I am not sure about that, Senator
Specter. I would have to think about that more.
Senator Specter. Well, give us your judgment. You are in
the middle of it. We are trying to come to conclusions.
Mr. Fine. I think the problem that we saw was that these
were not ticking time bomb situations and that there was--
Senator Specter. Okay, I grant you that. This is a
hypothetical that we have to come to grips with. And if you
conclude that in the ticking bomb circumstance these tactics
ought to be used, I would like your judgment as to how we do
it. Should we have a warrant, which Dershowitz suggests? Should
it go to the President? Why not take it to the President if you
are in that kind of extremis? We would like to go beyond, Mr.
Fine. We have great respect for what you have done and your
independence, but, candidly, I do not think you have gone far
enough. And we need more hard facts and more pursuit of the
facts as to Ashcroft and as to what is going on, and I know we
need your judgment as to what we ought to be doing. We are not
necessarily going to follow it. That is our responsibility. But
we ought to have the benefit of it.
Thank you, Madam Chair.
Senator Feinstein. Thank you very much, Senator Specter.
First of all, the votes have been moved to 11:20 from 11
o'clock, so there is a little more time. For those that were
not here, we will continue at 2 o'clock in this room, and we
will recess when the votes begin.
Senator Feingold, I believe you are next, then Senator
Whitehouse, and then Senator Durbin.
Senator Feingold. Thanks, Madam Chairman. Thank you for
holding this hearing. I ask that my full statement be placed in
the record, but I just wanted to say that I commend the FBI
agents discussed in the Inspector General's report who
recognized that the kinds of abusive interrogation practices
they witnessed other agencies employing were wrong and, just as
important, ineffective. They deserve our credit and they
deserve our thanks.
Ms. Caproni, did you personally ever raise concerns about
the CIA or Defense Department's use of abusive interrogation
techniques with the White House, the National Security Council,
or directly with the agencies at issue?
Ms. Caproni. A little bit of history might be helpful in
terms of when I came to the Bureau. I came to the Bureau in
August 2003, so at the point that I arrived, the Director had
already determined that the FBI would not participate in these
techniques. There were existing OLC opinions that were highly
classified and that we did not have access to, though the
Bureau, kind of writ large, generally understood that there
were existing memos.
The first I learned that aggressive interrogations were
being used was when Abu Ghraib broke and when we then started
trying to find out what did FBI agents know either about what
was going on at Abu Ghraib--actually, that was our first focus,
and that then flushed out a lot of other information that was
at this point--again, I had only been at the Bureau about 6
months at this point.
Senator Feingold. Is that your way of saying no to my
question then, that you personally--
Ms. Caproni. I personally did not--
Senator Feingold. Did you ever personally raise questions
or concerns about the CIA or Defense Department's use of
abusive interrogation techniques with the White House, the
National Security Council, or directly with the agencies at
issue?
Ms. Caproni. I did not.
Senator Feingold. Okay. Did you witness other FBI or DOJ
officials raising such concerns with those entities?
Ms. Caproni. Again, I was not here when all of this
started, so no.
Senator Feingold. So the answer is no.
Ms. Caproni. I have heard--I mean, I have learned
historically what was done.
Senator Feingold. Okay. The answer is no in terms of your
own role or what you observed.
Inspector General Fine, your report concludes that
ultimately ``neither the FBI nor the DOJ had a significant
impact on the practice of the military.'' Your report also
explained that the Office of Legal Counsel at DOJ had opined
that ``several interrogation techniques sought to be used by
the CIA were legal'' and that the Secretary of Defense had
personally authorized the use of certain abusive techniques at
Guantanamo Bay.
Did the OLC opinions and the fact that the techniques were
being approved at the highest levels of the Pentagon make it
more difficult for the FBI or DOJ to raise concerns? And might
it have even dissuaded some from raising these issues at all?
Mr. Fine. I think it did. I think the fact that these
opinions existed out there did have an impact on what FBI
agents believed was authorized and what they believed was
acceptable for other agencies. And I think at a certain point
it dissuaded them from raising continuous concerns about this.
Senator Feingold. Inspector General, your report explains
in detail how Defense Department interrogation policies changed
repeatedly from 2001 to 2004. Just to take an example, in late
2002 Secretary Rumsfeld authorized a series of what I would
consider abusive interrogation techniques for use at Guantanamo
Bay, but he then rescinded that authorization in early 2003.
One of the techniques no longer authorized, as I understand it,
was short shackling. Yet FBI agents reported that the use of
this technique continued for at least another year at
Guantanamo. And I do understand that the focus of your report
was on the FBI.
But is it your sense that military interrogators did not
know what they were permitted to do given the constantly
shifting policies and mixed messages that they were getting?
Mr. Fine. I think there was some sense that with the
changes in the policies that did not always get down to the
level of the interrogators who were actually conducting the
interrogation, and so that at points they were not sure or
aware what exactly was authorized.
Senator Feingold. So not necessarily willful defiance of
what they understood to be the procedures, but some confusion
perhaps.
Mr. Fine. I think to some extent, yes.
Senator Feingold. Mr. Fine, according to your report, an
FBI agent told you that Chinese authorities came to Guantanamo
Bay to interrogate several Uighur detainees. I know we are in
an unclassified setting, so what can you tell me about this
incident?
Mr. Fine. What we can tell you is that we were informed by
FBI agents at Guantanamo that Chinese authorities did come to
interview the Uigurs in Guantanamo, that they were informed
that prior to the Chinese officials' visit that the Uigurs were
subject to what was called the ``frequent flyer program''--that
is, they were woken up at regular intervals, every 15 minutes,
the night before to put them in a position to be interrogated
by the Chinese officials.
Senator Feingold. Ms. Caproni, according to the Inspector
General's report, you sent an e-mail in May 2004 to determine
whether FBI agents had ever received written guidance about
when they should decline to participate in interrogations
conducted by the Department of Defense or should report on
techniques that they witnessed. You found no such written
guidance, as I understand it. Director Mueller determined in
2002 that FBI agents should not participate in any
interrogations involving techniques that violated FBI policy.
If no written guidance was issued, how was that decision
communicated to the agents on the ground?
Ms. Caproni. It is my belief, and having read the IG's
report, who looked extensively, that it was orally conveyed and
that there was fairly consistent knowledge, despite the fact
that it was not written down, that they were supposed to only
use FBI technique, regardless of what their co-interrogators
might be authorized to do.
Senator Feingold. Why had the FBI not issued any guidance
prior to May 2004, despite the fact that FBI agents had been
dealing with military detainees for 2 years at that point?
Ms. Caproni. Senator, I do not know. I do not know the
answer to that. I mean, again, as soon as we realized that it
had never--there had never been written guidance
provided, we provided it. But I cannot answer why it was
not given earlier.
Senator Feingold. Mr. Fine, what about you? Do you draw any
conclusions as to why there was no written guidance prior to
May 2004?
Mr. Fine. I think there should have been guidance. I think
that it was not focused on, and I think that that was a
problem, not providing written guidance. It is one thing to
orally tell people things, but some of the agents had different
understandings. It is a complicated area. It is not simply what
you participate in but what other agencies are authorized to
do, what you should report, whether you can interview a
detainee who has been subjected to the other agency's
interrogation tactics, when can you do that, how you should do
that. It is a complicated area, and I think that written
guidance was appropriate and should have been issued.
Senator Feingold. I thank both of you and I thank the
Chair.
Senator Feinstein. Thank you very much, Senator.
Senator Whitehouse.
Senator Whitehouse. Thank you.
In response to the FBI decision that you would not
participate in the coercive methods of interrogation, it
strikes me that there are a number of reasons why that might
have taken place, and I would like to explore those reasons a
little bit with both of you.
The first reason would be to protect statements that were
obtained for judicial use in future criminal prosecutions,
correct?
Ms. Caproni. I think that it accomplished that, but I am
not sure that was a motivating factor.
Senator Whitehouse. You are not sure that was a motivating
factor.
Ms. Caproni. No. I think, again, these interrogations were
largely being done for intelligence purposes, and so while it
is, in fact, a benefit of our techniques, I do not think that
was the major--it was a motivating factor in the sense that, as
Agent D'Amuro said, you need an end game, and--
Senator Whitehouse. Would that have been the motivating
factor? In the report, page 115 to 116, there is a discussion
in November of 2003 in which the concern was raised that the
DOD's interrogation methods were making Gitmo detainees
unusable in U.S. cases. The unusable-ness, is that what you are
referring to?
Mr. Fine. Yes. I think that was one of the reasons why they
were concerned about it. I am not sure that is, as Ms. Caproni
said, the first reason, but it certainly was a factor, one of
the reasons, yes.
Senator Whitehouse. Would you agree with me that for an FBI
agent simply to leave when coercive methods are being applied
and then come back and resume after they are over clearly would
not be an adequate response in terms--if the goal really were
just to preserve evidence for future use judicially?
Mr. Fine. I think that is an important issue, and that is
the question of what kind of attenuation there is, from the
time that the coercive tactics are used and the FBI gets
involved, what do you have to do, how long a period of time it
is, what do you have to tell the detainee, what are the
circumstances of the interrogation that the FBI does after the
military interrogation. That is a complicated issue, and simply
coming in a few hours later probably is not sufficient.
Senator Whitehouse. So that takes us to a second issue,
which I think you have already discussed in your testimony,
which is that the coercive methods are either not effective or
not as effective as traditional expert interrogation
techniques. Was that another motivating factor in the
Director's decision, as best you know, to refuse to participate
in the coercive methods.
Ms. Caproni. Yes.
Senator Whitehouse. Okay. A third would be concern about
the legality of the techniques and of agent or agency liability
for participating in them. Was that a concern?
Ms. Caproni. It is my belief, as I have tried to
reconstruct who knew what when, that at the time that this
became crystallized, after Abu Zubaydah was captured, that
there were, in fact, existing opinions so that--again, I was
not at the Bureau at the time, so I was trying to reconstruct
how this happened--is that that actually shifted the debate
from it is illegal to, okay, OLC may have said it is legal, but
we have still got to decide whether we are going to participate
in it, we, the FBI, are going to be involved in something that,
A, we do not think is effective; B, it is going to make the
statements unusable in whatever the judicial end game is; and,
three, do we want to expose our agents, who eventually, unlike
CIA employees, unlike DOD employees, will be testifying in
Article III courtrooms, do we want them involved in this. And I
think all of those all came together, but it was with a
backdrop of OLC had been involved in--
Senator Whitehouse. Let's talk about OLC for a minute. Are
you comfortable with the OLC opinions? One of them has already
been publicly withdrawn.
Ms. Caproni. Again, I am the General Counsel of the FBI.
OLC is the agency within the Department who is charged with the
responsibility of making those decisions. So OLC's decision
ultimately controls.
Senator Whitehouse. Did the FBI make any effort to either
review the OLC decisions or to reach its own internal
determination as to the merits of the conclusions drawn by
those decisions?
Ms. Caproni. Not to my knowledge.
Senator Whitehouse. To date, still?
Ms. Caproni. I mean, I have my opinion on the merits of
those decisions, but, again, OLC's decisions are binding on the
Department of Justice in terms of what is lawful and what is
not, what is the meaning of statutes. They get the last word.
Senator Whitehouse. Well, ultimately a court gets the last
word.
Ms. Caproni. Perhaps.
Senator Whitehouse. That is a very scary word you just
used.
Ms. Caproni. No, no. I mean, Senator, a court gets the last
word if the issue is joined in a courtroom. Of course, the
court gets the last word.
Senator Whitehouse. And with respect to the ultimate
prospect that a court might get the last word, the FBI never
did its own sort of double-checking or kind of due diligence to
take a look at the OLC opinions even after one was withdrawn?
Ms. Caproni. There was a point when I requested to see the
opinions, and I was not shown the opinions. In fact, I did not
really press the issue because we were not participating. So
from the standpoint of our agents, we were not involved in the
techniques. My understanding was that OLC had passed on them.
And so from our perspective, we were not--I did not have
employees that were at risk.
Senator Whitehouse. When did you first become aware of the
OLC opinions, of their content? When did you first have a
chance to review them?
Ms. Caproni. I still have not reviewed them.
Senator Whitehouse. Just the declassified ones?
Ms. Caproni. Correct.
Senator Whitehouse. But the classified ones you still have
not had a chance to review?
Ms. Caproni. No.
Senator Whitehouse. Have you done research of your own on
this subject?
Ms. Caproni. No.
Senator Whitehouse. Well, maybe you should.
Ms. Caproni. Again, FBI agents are not participating in
techniques that go beyond what the FBI--
Senator Whitehouse. No, but FBI agents may take cases into
court, and as the case agent, they may be obliged to have to
manage a prosecution that brings to light that these coercive
techniques and methods were used. So it could very well become
a part of their role as a case agent to have to respond to
this, and in that guise, you would think that they would be
wanting some guidance from their General Counsel.
Ms. Caproni. I think our agents want guidance in terms of
what is their responsibility if they are interviewing someone
who has been subjected to these techniques, and we have had
extensive discussions on that, and particularly with the high-
value detainees that are now in Guantanamo, worked very
carefully with the Department of Justice--
Senator Whitehouse. My light just went. Let me ask you one
last question. You said you had an opinion about these OLC
opinions. What is it?
Ms. Caproni. It would not have been my opinion.
Senator Whitehouse. Fair enough. My time has expired.
Senator Feinstein. Thank you very much, Senator Whitehouse.
Senator Durbin.
Senator Durbin. Thank you. I want to thank you, Senator
Feinstein, for this hearing, and I have said on the floor and
in this Committee that I really believe that when the history
of this time is written, one of the most unfortunate,
embarrassing chapters will deal with this administration's
decision to set aside what had been time-honored for
generations, our opposition to torture. The next President will
have an awesome responsibility to restore the image of this
great Nation in the eyes of many people around the world who,
unfortunately, will identify us by some of the extreme conduct
which was the subject of this effort by the Inspector General.
It is my understanding, Mr. Fine, that you have set out to
interview some 1,000 different witnesses and actually had
opportunity to speak to over 200 of them. Is that correct?
Mr. Fine. Well, we sent out a survey to 1,000 witnesses,
FBI witnesses who were deployed overseas. About 900 of them
sent back responses. We picked the ones where they had relevant
information, and we interviewed over 200 witnesses.
Senator Durbin. I went to the floor of the Senate in June
of 2005 to talk about an FBI agent's observations, which are
chilling and I will not read back into the record, but involved
short shackling, extreme temperatures, and the like. Four of my
Republican colleagues came to the floor 2 days later, and one
raised the question as to whether this had even happened,
whether it was even possible, whether the report was accurate
from this FBI agent, which had been obtained through normal
means.
So I would like to ask you, based on what you have seen
here and what you have heard and the questions that have been
asked, is there any doubt in your mind that, for example, the
short shackling for prolonged periods of time, where a
detainee's hands were shackled close to his feet to prevent him
from standing or sitting, occurred?
Mr. Fine. We believe the evidence showed that it did occur.
The FBI agents witnessed it and reported it to us.
Senator Durbin. The use of extreme temperatures, another
commonly reported technique, did that occur?
Mr. Fine. They reported that as well.
Senator Durbin. FBI agents also told you that short
shackling was sometimes used in conjunction with holding
detainees in rooms where these extreme temperatures were being
applied as well. Is that correct?
Mr. Fine. That is correct.
Senator Durbin. And, finally, isn't it true that Secretary
Rumsfeld approved the use of stress positions, like short
shackling and temperature manipulation, as interrogation
techniques and that these were not the actions of a few bad
apples on the night shift, as we have been told?
Mr. Fine. There was an evolution of the policies, and, yes,
there were periods of time where those techniques were approved
and authorized.
Senator Durbin. Ms. Caproni, I have struggled here in this
Committee trying to understand the position of the Department
of Justice, and particularly our current Attorney General, when
it comes to waterboarding and other cocercive techniques. And
throughout history we as a Nation have taken a pretty clear
position on some of these issues, and I might say that the
Judge Advocates General, the highest-ranking uniformed military
lawyers, told me unequivocally that the following techniques
are illegal and violate Common Article 3 of the Geneva
Conventions: painful stress positions, threatening detainees
with dogs, forced nudity, mock execution, and waterboarding.
Ms. Caproni, you are the FBI's highest-ranking legal
officer, so I would like to ask for your position on these
interrogation techniques. Are they abusive? Are they illegal?
Ms. Caproni. Again, the issue of legality or non-legality
is not mine to reach. That truly is the responsibility of the
Office of Legal Counsel, and as much as I might like to be able
to overrule any other component of the Department, I cannot. It
is really their responsibility to make that decision.
Senator Durbin. Have they made that decision? Are they
illegal? Abusive? Do they violate the Geneva Conventions?
Ms. Caproni. I have not read the OLC opinion, so I cannot
answer that question.
Senator Durbin. Well, let me ask you, if you cannot answer
the question, how do you expect rank-and-file FBI agents to
determine whether these techniques are abusive?
Ms. Caproni. I think there is a different question about
whether something is abusive versus whether something violates
the Geneva Accords or whether it violates--
Senator Durbin. I asked that question. Are they abusive,
illegal, or violate Geneva Conventions?
Ms. Caproni. I am sorry. I was running them all together,
Senator. I would say they are all abusive.
Senator Durbin. Under all circumstances?
Ms. Caproni. Short shackling, waterboarding--I am sorry,
what was the other--
Senator Durbin. Painful stress positions, threatening
detainees with dogs, forced nudity, mock execution, and
waterboarding.
Ms. Caproni. Yes, those are abusive under all
circumstances.
Senator Durbin. Do you consider them torture?
Ms. Caproni. Again, torture has a legal definition, and
that is what OLC has passed on, and it is not within my pay
grade to overrule OLC.
Senator Durbin. And how could it be within the pay grade of
those below you to understand whether what they are doing is
torture or not?
Ms. Caproni. Again, the FBI agents' responsibilities was,
one, not to participate. These techniques are clearly not
permissible in the United States. We train our agents well.
They would have known that none of those techniques were they
permitted to participate in. In terms of reporting, I believe
from May 2004, when we made it clear that they were obligated
to report abusive techniques, unless they knew it was
authorized, and that was not part of the policy. But if they
called in and they said if it was authorized, we did not need
to report, the answer is no, if it is authorized, you do not
need to report; that an agent would understand these to be
abusive techniques.
Senator Durbin. Mr. Fine, I was struck by your findings
that Director Mueller was unaware of the dispute between the
FBI and the Defense Department regarding interrogation
techniques which began in 2002 until after the Abu Ghraib
scandal in May of 2004?
Mr. Fine. He was aware of it in 2002 in connection with the
Abu Zubaydah matter.
Senator Durbin. So were there reports from his agents about
activities at Guantanamo and other places involving these
interrogation techniques?
Mr. Fine. Mostly reports related to Abu Zubaydah. After
that, the reporters filtered through the FBI, but most of them
were handled in the Counterterrorism Division and over to the
Department of Justice Criminal Division and through the
Department of Justice. So--
Senator Durbin. Beyond Abu Zubaydah, do you believe that
there was a regular communication of reported abuse and
techniques that were questionable to the Director?
Mr. Fine. I do not believe that there was a regular report
to the Director of abusive techniques, no.
Senator Durbin. I quote from your report: ``Director
Mueller told the OIG that, in general, he did not recall being
aware of the dispute between the military and the FBI over
interrogation techniques at Guantanamo prior to the spring of
2004 after the Abu Ghraib disclosures. He said he didn't recall
seeing either the November 2002 EC written by Foy or the May
2003 EC written by McMahon.''
Mr. Fine. Abu Zubaydah was not held at Guantanamo at that
time. He was held at a CIA facility.
Senator Durbin. So in terms of Guantanamo, if the Director
says it was not until after Abu Ghraib that he was given any
kind of basic information, 2 years after this had been going
on, that is what you found in the course of your investigation?
Mr. Fine. We found that the reports did filter up. It
filtered up through the Counterterrorism Division. They went
over to the Department of Justice. We did not have clear
evidence that these reports went up to the Director of the FBI
in specificity.
Senator Durbin. I see my time has expired, Madam Chair.
Thank you very much.
Senator Feinstein. Thank you very much, Senator Durbin.
We are joined by Senator Cardin. Welcome.
Senator Cardin. Madam Chair, thank you very much, and let
me thank our witnesses for being here.
There are many reasons why this Committee and the American
people need to be concerned about the interrogation techniques
that have been used by the CIA and others that clearly, as
reported, would violate, in my view, U.S. law, would be a moral
issue for this country, the values that we hold so dear. The
techniques, in my view, are torture and, therefore, are illegal
not only by our domestic laws but by our international
commitments. And I think my colleagues have questioned in
regards to those points.
I want to raise another issue, and that is, the reliability
of the information that is obtained through these enhanced
techniques. Is there anything that either one of you can report
on as to whether the use of these enhanced techniques has
produced information that is reliable and helpful in dealing
with the threats against America?
Now, just to give you--there have been several reported
cases of misinformation that was obtained through enhanced
techniques. I will give you one example. IBN Al-Sheikh Al-Libi,
who ran al Qaeda's training camp in Afghanistan, told
authorities that Iraq provided chemical and biological weapons
training to al Qaeda operatives. That ended up in Secretary
Powell's comments to the United Nations. It was used as
justification for U.S. military action in Iraq. Al-Libi later
recanted, saying he made it all up under coercive interrogation
and he was subsequently deemed A ``FABRICATOR'' by the CIA.
So I would like to know whether in your investigations you
have uncovered information that would show whether this is
useful to America as far as intelligence gathering. We could
also go back historically that if coercive practices worked, we
probably had a lot of witches in America back a couple
hundred--a couple decades ago, or I guess a hundred years ago.
So any information you have that can shed light on this?
Mr. Fine. Senator Cardin, our investigation was not an
investigation of what intelligence was obtained and whether
more useful information was obtained in one way or the other.
But what I can tell you is the FBI believes strongly that their
techniques, which have been used successfully in various
contexts, both domestically and internationally, with people
not wanting to give them information, have been successful and
are successful in getting reliable, accurate information.
In addition, they believe that these other techniques,
which are used to break people or to coerce them into
testifying, can have the effect of getting the person to say
whatever he thinks the interrogator wants him to say in order
to get the interrogator to stop using those techniques. And,
therefore, the accuracy or the reliability of that information
is undermined.
They believe strongly in their rapport-based approach. I
will also note that after the Detainee Treatment Act and the
change of the Army Field Manual, the Army has now moved
towards--closer to the FBI's techniques and rapport-based
approach rather than a coercive approach. So I think that tells
one something as well.
Senator Cardin. So what you are basically telling us is
that the FBI, the Army interrogators believe that it is not
only the right method to interrogate by not using the so-called
enhanced techniques that many of us think are illegal, but it
also from a pragmatic point of view produces more reliable and
timely information.
Mr. Fine. That is clearly what the FBI believes.
Senator Cardin. I see that you are shaking your--
Ms. Caproni. Correct. The FBI believes that the most
efficacious way of conducting interrogations is through
rapport-based interview techniques.
Senator Cardin. And, of course, there are many other
reported examples. These are reported examples where we know
that information obtained through coercive techniques has
proved to be unreliable. We had the three British detainees at
Gitmo, the ``Tipton Three,'' who were reportedly subject to a
year and a half of coercive interrogation. They eventually
admitted to being present at a speech by Osama bin Laden in an
Al Qaeda training camp. The authorities later found out that
they were in the United Kingdom at that time, so that
information was inaccurate. And there are more and more
examples of those types that have been reported. We do not know
how much information, because of the classified nature of the
interrogations and refusal of the CIA to release details, how
much more information we have obtained is unreliable and how we
perhaps were delayed in getting important information because
of the failure to follow more traditional techniques for
interrogating detainees.
Madam Chair, we had a hearing on this in the Helsinki
Commission to try to figure out what is the most effective way,
and that hearing is totally consistent with the testimony of
our two witnesses here, that using the conventional
techniques--admittedly, we are more sophisticated today than we
were. We now know more sophisticated ways to interrogate, but
not using the coercive tactics that have been reported being
used by CIA. And the experts we heard, including people who
were former interrogators, was that the most reliable way to
get information is to use interrogation techniques that are not
coercive or do not border on or are torture in nature. And for
the life of me, I cannot understand why the CIA continues to
hold out the use of techniques that clearly question America's
commitments to its principles and not producing the information
we need in order to keep Americans safe.
Thank you, Madam Chair.
Senator Feinstein. Thank you very much.
I have a memo that was drafted by a supervising special
agent, whose name is redacted, of the FBI--it is unclassified--
from Guantanamo. This is the memo that was forwarded to Marion
Bowman, and according to Mr. Bowman, this memo did not reach
him for 6 months, that for some reason it resided at Quantico
for a period of time.
On the second--and it is a very good memo. On the second
page, in the legal analysis, this memo states that--first of
all, it states the three categories of interrogation, and then
it goes on to say, ``Information obtained through these methods
will not be admissible in any criminal trial in the U.S.
Although information obtained through these methods might be
admissible in military commission cases, the judge and/or panel
may determine that little or no weight should be given to
information that is obtained under duress.'' And then it gives
some examples of coercive interrogation techniques, Categories
2 and 3.
It finally says--and I think it is very interesting--``It
is possible that those who employee these techniques may be
indicted, prosecuted, and possibly convicted if the trier of
fact determines that the user had the requisite intent. Under
these circumstances, it is recommended that these techniques
not be utilized.''
I am going to place this in the record, and I am going to
ask you, Mr. Fine, have you looked at this memo?
Mr. Fine. We have that memo. We discuss it on page 120 and
121 of our report. It was by the FBI agents from the Behavioral
Analysis Unit who were down there involved in the Al Qahtani
matter. They raised those concerns in an electronic
communication memo to Spike Bowman. It did take a long time to
get to him. It took 6 months before it got to him. By that
time, the interrogation of Al Qahtani had changed, and Spike
Bowman used the memo and raised concerns with the Department of
Defense, which we do discuss on page 121.
Senator Feinstein. What is the present mental condition of
Mr. Al Qahtani?
Mr. Fine. The present condition?
Senator Feinstein. Yes.
Mr. Fine. I don't know the present condition. We did
interview him. We interviewed him when we were at Guantanamo.
Senator Feinstein. And what did you find?
Mr. Fine. He described things that happened to him, and he
was able to communicate with us.
We interviewed him in the presence of his lawyer. He seemed
to understand our questions and was able to communicate with
us.
Senator Feinstein. And what did he tell you about his
conditions?
Mr. Fine. He told us about the abusive techniques that had
been utilized on him, which we describe.
Senator Feinstein. Okay. So that will go in the record.
Are you aware that Spike Bowman called the DOD General
Counsel in November or December of 2002?
Mr. Fine. He called the General Counsel's office. He did
discuss the concerns. The exact timing of it I would have to
get straight, but he did raise concerns with the Department of
Defense about the treatment of Al Qahtani. And, really, when he
called back to follow up, he was unable to obtain any
information about what actions the DOD took in response to his
concerns and his information. He basically got the response
that the Department of Defense was handling it.
Senator Feinstein. So he was effectively stonewalled?
Mr. Fine. His concerns were not addressed.
Senator Feinstein. One other question, and then I would
like to turn to Senator Whitehouse. Senator Whitehouse asked
the question about the effectiveness, and you both indicated
that you did not believe that these types
of enhanced interrogation techniques are effective. I would
like to ask you to explore that for a moment and give us some
substantiation of what you are stating for the record.
Mr. Fine. Well, I was not giving a personal opinion. What I
was giving is what the FBI was telling us and what their
position is, and they have been doing this for years and years
and years. They are trained professionals at this. They do it
on a regular basis, trying to get information in custodial
interrogations from all sorts of people in an adversarial
context who do not want to give it to them, both before and
after September 11th. They believe strongly that the best way
to get actionable, accurate information is to use the rapport-
based approach. By that, it is not simply being a nice guy.
There are all sorts of techniques that they use, that they can
pressure people, that they can make it clear to them that it is
better to provide information, giving them justifications for
it--a whole variety of techniques that they regularly employ.
They believe that that was the way to approach this situation
as well.
Senator Feinstein. Ms. Caproni, do you have a comment?
Ms. Caproni. Again, I would agree with the Inspector
General that, based on our experience, if you know who you are
interrogating--I think that may be one of the things that our
agents would say is most critical, is you need to know the
person. You need to know all the information we have about
them. You need to know the subject matter. So if you are
interrogating about al Qaeda, you need to know al Qaeda. If you
are interrogating about the Colombo family, you need to know
the Colombo family. But if you are well prepared, rapport-based
techniques are a better way to go because you get reliable
information, and it is an effective interrogation technique.
Senator Feinstein. Thank you very much. Well, thanks to the
help of Senator Whitehouse, we have included in the
intelligence authorization bill an amendment put in in the
conference between the House and the Senate that the CIA will
follow the Army Field Manual. That is a part of the bill. The
bill will not pass without it. And the Chairman of Intelligence
has indicated that, and we will make this change, that is for
sure, 1 day.
Senator Whitehouse, you wanted to say something?
Senator Whitehouse. Yes, Chairman. I just wanted to ask a
couple more questions, try to punch through these relatively
quickly.
On page 106 of the report, there is a reference to Special
Agent Brett's legal analysis of the interrogation techniques.
May I ask for a copy of that for the record?
Mr. Fine. Certainly we will work with you on that, and the
FBI.
Senator Whitehouse. That appears to be responsive to my
earlier question about whether the FBI had done some
independent legal analysis. I would like to see a copy of it.
Ms. Caproni. That is fine.
Senator Whitehouse. The second thing is just with respect
to what Inspector General Fine just said about the FBI being
trained professionals. The spin that has come out of the
administration on this subject is that the CIA are the trained
professionals, they are the experts. By contrast, military
interrogators are amateurs and not experienced and, therefore,
need to be constrained by the Army Field Manual to prevent them
from doing irresponsible things, but you can trust the trained
experts of the CIA. Presumably, the same analysis applied to
the FBI, that you can trust the trained agents of the CIA, but
you FBI amateurs do not measure up in that respect and,
therefore, have to operate under different rules.
Is there anything that your investigation showed that would
bear on the credibility of that argument as a defense of these
techniques?
Mr. Fine. We did not look at the relative, you know,
professionalism or training of the CIA versus the FBI, but we
do know that the FBI are trained professionals. They do this
all the time. They have a history of success in this area, and
there is, in my view, no reason to doubt their interrogation
abilities.
Senator Whitehouse. Did you have occasion to look at the
experience and the training of trained expert military
interrogators as well?
Mr. Fine. Well, we looked at what the military
interrogators were doing with regard to the detainees and how
they came up with their plans. And it was not a well-thought-
out, sophisticated plan based upon training or experience.
Senator Feinstein. Senator Whitehouse, would you yield?
Senator Whitehouse. Of course.
Senator Feinstein. When the FBI does interrogations, they
do it with their trained government people. The CIA uses
contractors, and this is a huge difference, in my view.
I am sorry. Thank you.
Senator Whitehouse. No, a very good point. I am glad you
interjected it.
The Vice President indicated that waterboarding amounted to
a dunk in the water. Secretary Rumsfeld indicated that standing
stress positions were of no particular consequence because he
stands at his desk longer than that every day. Do these
statements, based on your investigation, fairly and accurately
describe the effect of these coercive treatments at issue?
Mr. Fine. Well, first of all, we did not look at
waterboarding because that was not done by the military or the
FBI, and the stress positions are not simply just standing up
for a period of time.
Senator Whitehouse. No, but is it fair and accurate to
equate a standing stress position with standing at your desk
for hours?
Mr. Fine. I do not believe so, particularly depending on
the duration of the stress position.
Senator Whitehouse. That raises the question, at least with
respect to Secretary Rumsfeld's statement, as to whether he
simply did not know what the effect is of these stress
positions, which is kind of an alarming thought that they are
signing off on these things so ignorant of them that they do
not really know what they mean or what they do. The only
alternative, unfortunately, is that he knew perfectly well what
they are and what they do, and he was dissembling or
misleading.
Did your investigation turn up any evidence as to which of
those is the more likely explanation of the discrepancy between
his description of the technique and the actual true effect of
the technique?
Mr. Fine. No, we did not look at Secretary Rumsfeld, or his
state of mind, or the statements of Department of Defense high-
level officials.
Senator Whitehouse. Last question. Have you looked at
United States v. Lee, the Fifth Circuit decision in which Texas
sheriffs were prosecuted by the Department of Justice for
waterboarding prisoners?
Mr. Fine. I have not looked at that, no.
Senator Whitehouse. Ms. Caproni.
Ms. Caproni. No.
Senator Whitehouse. Do you know if the FBI--well, a
question for the record whether the FBI was involved in that
prosecution.
Ms. Caproni. I will have to check. I would guess probably.
Just based on what you have described, that would be sort of
within our core jurisdiction.
Senator Whitehouse. Very good. I appreciate it.
I thank the Chair for allowing a second round here.
Senator Feinstein. You are very welcome.
I know Senator Schumer wanted to come to ask some
questions, so I will ask just one question in the hope that he
will arrive, or else we will go on to the next panel.
Mr. Fine, your report states that there was some friction
between FBI officials and the military over the interrogation
plans for Al Qahtani. Could you describe the nature of that
friction, please?
Mr. Fine. The friction was whether these were appropriate
plans, effective plans to be used on Al Qahtani. The military
wanted to use this phased, aggressive approach. The FBI did not
believe it was effective or would obtain actionable, accurate
intelligence. They objected to it. They raised concerns about
it with both the Department of Defense, and we have indications
they raised it with the National Security Council as well.
Ultimately, the Department of Defense had the ultimate call on
what techniques were used on Al Qahtani.
Senator Feinstein. Thank you.
Senator Schumer has arrived. Senator Schumer, a 7-minute
round. If you would like to make a statement, go ahead.
Senator Schumer. Well, thank you. And I first, Madam Chair,
want to thank you for holding this very important hearing on a
very important topic that goes right to the heart of who we are
as a Nation and how we keep our Nation safe--the age-old
balance between security and liberty, which has been one of the
major topics of discussion in America since the days of the
writing of the Constitution.
Now, speaking for myself, I abhor torture. I believe
waterboarding and other similar techniques are unlawful and un-
American, and not only that, but that Congress needs to ask, as
we are doing in this hearing, whether coercive interrogation
techniques are effective. That has been one of the great
debates here. And by ``effective,'' I mean that we need to know
whether coercive interrogation yields accurate information that
can help keep us safe. That is the ultimate standard.
The FBI has determined, based on decades of experience and
expertise, that non-coercive, rapport-based interrogation
techniques are the most effective ways to obtain information;
and as Mr. Fine noted in his excellent and thorough report,
numerous FBI officials question the effectiveness of coercive
interrogation techniques.
So let me first ask a few questions of Ms. Caproni, and I
thank you for being here, and you can answer them yes or no.
You will see.
Does the FBI want to protect America?
Ms. Caproni. Yes.
Senator Schumer. And does the FBI want to make sure that
criminals and terrorists are brought to justice?
Ms. Caproni. Absolutely.
Senator Schumer. Is the FBI's commitment any less strong
than any other agency or component in the U.S. Government?
Ms. Caproni. No.
Senator Schumer. And the FBI has decades of experience and
expertise in understanding what works and what does not in
terms of investigation and interrogation, does it not?
Ms. Caproni. Yes, it does.
Senator Schumer. Then why the profound difference of
opinion between the FBI and other U.S. agencies on the wisdom
and effectiveness of using coercive techniques such as
waterboarding?
Ms. Caproni. Senator, I do not know. I do not know why the
CIA currently believes that these are the right techniques to
use. I do not question their good faith. They believe it. We
simply disagree on this.
Senator Schumer. And the kind of people you interrogate are
not terribly different. They are similar in a lot of ways, or
in certain instances--
Ms. Caproni. Frequently, they are the same people.
Senator Schumer.--drug dealers here in America, but--
pardon?
Ms. Caproni. I said frequently they are the same people.
Senator Schumer. Yes, exactly. Okay. Now, I have a few more
questions about this, Madam Chair.
The most fascinating case is provided by none other than
Saddam Hussein. Ms. Caproni, isn't it right that the
interrogation of Saddam Hussein was handled by FBI Special
Agent George Piro?
Ms. Caproni. Yes, it is.
Senator Schumer. And Special Agent Piro has said publicly
that no coercive techniques were ever used in interrogating
Saddam Hussein, just traditional rapport building and
manipulation. Is that correct, as far as you know?
Ms. Caproni. That is correct.
Senator Schumer. Now, as I understand it, that 7-month
interrogation of Saddam Hussein was very successful. Special
Agent Piro was able to find out how Hussein evaded American
military forces for so long, and he got Hussein to confirm that
Iraq's weapons of mass destruction had been destroyed years
before our 2003 invasion.
Ms. Caproni, would you agree that this was an effective
interrogation?
Ms. Caproni. Yes.
Senator Schumer. Did anyone in the administration ever push
the FBI to use coercive techniques with Saddam Hussein?
Ms. Caproni. Not to my knowledge.
Senator Schumer. Okay. Do you think that coercive
techniques would have been effective with Saddam Hussein?
Ms. Caproni. Again, we do not believe that coercive
techniques are effective. We believe--
Senator Schumer. Let me just--Special Agent Piro, that was
the interrogator, he says that coercive techniques would not
have worked with Hussein because he had ``demonstrated that he
would not respond to threats or any type of fear-based
approach.'' Do you have any reason to disagree with this view
that coercive techniques would not have been effective?
Ms. Caproni. I have no reason to disagree.
Senator Schumer. Okay. So we are talking here about a
notorious, cruel dictator, a tyrant, against whom the United
States went to war twice, someone who hates the U.S.,
everything we stand for, we thought hiding weapons of mass
destruction to use against us, and yet this pitiless tyrant
cracked under the traditional technique of building rapport. He
fell under the power of Special Agent Piro, gave up all kinds
of information. If we did not use the coercive techniques with
Saddam Hussein and if coercive methods would not have worked
with Saddam Hussein, I cannot imagine why we would need to use
them against anybody else. It is befuddling to me.
Now, I just have a little bit more on these disputes that
there are in the agencies. Again, this is for you, Ms. Caproni.
It has been suggested that there was ``trench warfare'' between
the DOJ/FBI on the one hand and DOD/NSC on the other with
respect to what kinds of interrogation techniques should be
used on detainees. Ms. Caproni, is that a fair
characterization?
Ms. Caproni. I am not quite sure what ``trench warfare''
means in that context.
Senator Schumer. Pretty tough stuff, though, pretty heated
discussions.
Ms. Caproni. There were definite disagreements between FBI/
DOJ on the one hand and DOD on the other hand.
Senator Schumer. Okay. Let me ask you, did anyone in the
Government put pressure on you, Director Mueller, or anyone
else at the FBI to participate more directly in the coercive
techniques at issue?
Ms. Caproni. You were not here when I gave my disclaimer,
which is that I came to the Bureau in August of 2003, after the
Director had made the decision that we would not participate. I
know there were discussions within the administration. I do not
know whether there was any pressure put on--
Senator Schumer. To your knowledge, you do not know one way
or the other.
Ms. Caproni. I do not know one way or the other.
Senator Schumer. How about you, Mr. Fine?
Mr. Fine. No, we are not aware of that.
Senator Feinstein. Would you yield for one moment?
Senator Schumer. I would be happy to yield to you, Madam
Chair.
Senator Feinstein. We invited Director Mueller to be here
today, and in his stead, very ably, is Ms. Caproni. But I had
hoped to be able to ask him that kind of question.
Senator Schumer. Right. And I would ask in the interim,
could you--I do not know who is--I guess it would be Ms.
Caproni. Could you inquire and get back to us? Could you ask
some of the leadership?
Ms. Caproni. I will.
Senator Schumer. Great. Okay. Let's see. And did anyone--do
you know this, either of you, did anyone at the FBI or DOJ
threaten to resign over issues or disputes relating to the
issue of coercive interrogation techniques on detainees?
Ms. Caproni. Not to my knowledge.
Mr. Fine. Not to my knowledge either.
Senator Schumer. Okay. And so you would not know then if
there was any retaliation or retribution of any kind against
anyone at the FBI or DOJ based on the refusal to participate in
those interrogations?
Mr. Fine. No.
Senator Schumer. Let's see. I have 23 seconds, and you have
been nice in waiting for me, so I will submit my last round of
questions about destruction of documents for the record. And
could I ask unanimous consent that the witnesses send written
answers?
Senator Feinstein. Without objection.
Senator Schumer. Thank you, Madam Chair.
Senator Feinstein. Senator, you might be interested--and I
thank you for those questions--in the fact that this afternoon,
former FBI Agent Cloonan, who has interrogated al Qaeda
suspects and was very successful in so doing using these
techniques, and we will hear from him directly, I think, as to
the success that he has had. Now, of course, that was in the
1990s after the first World Trade Center bombing but,
nonetheless, I think highly relevant to this discussion today.
And we will continue this at 2 o'clock here. We are about to
start--why don't I do this, because we are 20 minutes into the
vote. Why don't we bring up the next panel, since I have got
two Senators here.
Let me thank you both. You really do this Nation a service
by being so straightforward, and it is very much appreciated.
So thank you for being here this morning.
Senator Feinstein. We will ask the next panel to come to
the table, and I think we will have an opportunity to begin.
Pursuant to Mr. Sands' request, I will ask that you
gentlemen stand and raise your right hand, please. Do you
affirm that the testimony you are about to give before the
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Mr. Cloonan. I do.
Mr. Sands. I do.
Mr. Heymann. I do.
Senator Feinstein. Thank you very much. And I will make the
three introductions together, and then we will begin.
The first witness will be Jack Cloonan. He is the president
of the security firm Clayton Consultants. He was a special
agent for the FBI from 1977 to 2002. He was assigned to the
Bureau's Osama bin Laden Unit in 1996. He has personally
conducted interviews of members of al Qaeda and has received
several commendations and awards for his work for the FBI in
counterterrorism investigations. Since retiring from the FBI,
Mr. Cloonan has served as a counterterrorism consultant and
commentator for ABC News.
The next witness will be Philippe Sands. He is a professor
of law at the University College of London, and, again, I thank
him for crossing the pond to be here today. And he is director
of their Centre of International Courts and Tribunals. Mr.
Sands has appeared before many international courts, including
the European Court of Justice, the International Court of
Justice, and the Special Court for Sierra Leone. He has written
extensively on the subject of coercive interrogations and
torture, including the books ``Torture Team,'' published in
2008, and ``Lawless World,'' published in 2006.
Philip B. Heymann has been the James Barr Ames Professor of
Law at Harvard University since 1989. He has appeared before
this Committee several times. He has authored several books
addressing the balance between civil rights and security from
terrorist attacks. Professor Heymann served as Deputy U.S.
Attorney General in the Clinton administration, as Assistant
Attorney General in charge of the Criminal Division, and as an
associate prosecutor for the Watergate Special Task Force.
We will begin with Jack Cloonan. Mr. Cloonan, please
proceed.
STATEMENT OF JOHN E. CLOONAN, RETIRED SPECIAL AGENT, WEST
CALDWELL, NEW JERSEY
Mr. Cloonan. Senator Feinstein and distinguished members of
the Committee. Good morning and thank you for the opportunity
to testify about coercive interrogation techniques, their
effectiveness, the reliability of the information obtained in
this way and, the FBI's knowledge of these matters. It is my
belief, based on a 27-year career as a special agent and
interviews with hundreds of subjects in custodial settings,
including members of al Qaeda, that the use of coercive
interrogation techniques is not effective. The alternative
approach, sometimes referred to as ``rapport building,'' is
more effective, efficient, and reliable. Scientists,
psychiatrists, psychologists, law enforcement and intelligence
agents, all of whom have studied both approaches, have come to
the same conclusion. The CIA's own training manual advises its
agents that heavy-handed techniques can impair a subject's
ability to accurately recall information and, at worst, produce
apathy and complete withdrawal.
I have personally used the rapport-building approach
successfully with al Qaeda members and other terrorists who
were detained by U.S. authorities. The information elicited led
to numerous indictments, successful prosecutions, and
actionable intelligence which was then disseminated to the CIA
and the NSA and others. This approach, which the FBI practices,
is effective, lawful, and consistent with the principles of due
process. And in addition to its intelligence-gathering
potential, it can do nothing but improve our image in the eyes
of the world community.
A skilled interrogator, using elicitation techniques and
understanding the end game, will serve the public's safety and
our national security. The ultimate outcomes might be gathering
evidence to support a prosecution or obtaining actionable
intelligence to prevent a terrorist attack. I accept the
argument that coercion will obtain a certain kind of
information. I do not, however, accept the argument that sleep
deprivation, sensory deprivation, head slapping, isolation,
temperature extremes, stress positions, waterboarding, and the
like will produce accurate information. An interrogation using
rapport building obtains more reliable information and changes
the relationship between the interrogator and the subject. Once
a bond is formed between the two, the latter takes the
investigator on a journey of discovery and sheds light on the
darkest, most closely held secrets of an organization like al
Qaeda. U.S. intelligence and law enforcement agents seldom get
the chance to interrogate al Qaeda subject matter experts like
Khalid Sheikh Mohammed, Ramzi Bin Al-Shib, Jamal Ahmed Al-
Fadel, L'houssaine Kertchtou, Ali Abelseoud Mohamed, and Ibhn
Sheikh Al-Libi, and these opportunities are too precious to
waste. I am convinced by my experience that the rapport-
building approach is the way to go in these circumstances.
As the conversion from antagonist to ally takes hold within
the process and the recalcitrant subject begins to cooperate,
the interrogator assumes the role of caretaker. He or she can
then shape the conversation, listen intently for
inconsistencies, and, finally, save untold man-hours chasing
after false leads.
Critics of rapport building often say that the enemy we
face today--the radical Islamist who is ready and willing to
die for Allah--requires a more aggressive approach. They frame
the debate by injecting the ticking bomb scenario. They suggest
that there is no time to break bread with these killers. In
fact, there are those who believe that the 9/11 attacks
occurred because we treated terrorism as a law enforcement
issue. This was not the case. In the months before the attacks,
the ``chatter'' suggested that ``something big'' was imminent,
but neither the law enforcement nor the intelligence community
had an agent who knew what al Qaeda intended to do on that
fateful day. The rapport-building approach used on an al Qaeda
operative might have helped to address this frightening and
dangerous reality.
I participated in many interviews with suspected al Qaeda
members where actionable, reliable information was obtained. It
was used in the successful prosecutions of al Qaeda operatives
who murdered American citizens. The image of a former al Qaeda
operative testifying under oath in district court and
repudiating bin Laden and al Qaeda and its ideology of hate
sent a powerful message to citizens of America and the world.
Showcasing that message had an immediate impact. It highlighted
the fact that bin Laden and al Qaeda are vulnerable, and it
effectively answered those who believe in his omnipotence,
America's weakness, and the hypocrisy of her leaders.
Bin Laden and his advisors often refer to U.S. intelligence
and law enforcement agents as ``blood'' people. They mean
simply this: We, according to bin Laden, use torture to extract
information. Bin Laden has theorized that the most loyal al
Qaeda sympathizer will break within 72 hours and give up
operational information. Therefore, he has kept operational
details about impending attacks strictly compartmentalized. In
other words, those in the know or with a need to know were
limited to a few trusted followers. My experiences and those of
my former FBI colleagues would certainly support this
conclusion.
The majority of jihadists detained post-9/11 were clueless
when it came to al Qaeda's operational plans, and I do not
believe many of the detainees posed a direct threat to the U.S.
or were confidants of bin Laden or Ayman Zawahiri. A heavy-
handed approach with these detainees was unlikely to generate
any useful intelligence, and it served to validate bin Laden's
take on America and our intelligence-gathering propensities.
Of course, obtaining reliable information from jihadist
foot soldiers in Afghanistan and Iraq is vital to protect our
troops, who are in harm's way. But even on the battlefield and
under exigent circumstances, rapport building is more effective
in gaining information for force protection in my opinion.
Enhanced and coercive interrogation techniques are ineffective
even under extreme circumstances. Senator, I have spoken to a
number of FBI agents who were seconded to Gitmo as
interrogators. In confidence, they told me the vast majority of
detainees questioned under these stressful conditions were of
little or no value as sources of useful intelligence.
Information is power, and the lack of reliable human
intelligence assets, who are capable of telling us what al
Qaeda is up to, is the greatest challenge facing U.S. law
enforcement and the intelligence community. Technological
assets, like signals intelligence, targeted wiretapping, and
computer exploitation have preempted some terrorist attacks,
and we are all grateful for that. I submit, however, that the
most effective countermeasure to the threat posed by al Qaeda
and like-minded groups is and always will be the apostate who
chooses to cooperate and, if you will pardon the expression,
``spills the beans.'' Gaining the cooperation of an al Qaeda
member is a formidable task, but it is not impossible. I have
witnessed al Qaeda members who pledged ``bayat'' to bin Laden
cross the threshold and cooperate with the FBI because they
were treated humanely, understood what due process was about,
and were literally seduced by our legal system, as strange as
that may sound.
I am reminded of a conversation I had with an aide to bin
Laden. He told me al Qaeda believes in the ``sleeping dog''
theory. The sheik is very patient, and the brothers will wait
for as long as it takes for the dog to nod off before they
attack. I believe we cannot relax our vigilance in the hope
that bin Laden will forget.
There are three questions I would like this Committee to
ponder. Has the use of coercive interrogation techniques
lessened al Qaeda's thirst for revenge against the U.S.? Have
these methods helped to recruit a new generation of jihadist
martyrs? Has the use of coercive interrogation produced the
reliable information its proponents claim for it? I would
suggest that the answers are no, yes, and no.
Based on my experience in talking to al Qaeda members, I am
persuaded that revenge, in the form of a catastrophic attack on
the homeland, is coming, that a new generation of jihadist
martyrs, motivated in part by the images from Abu Ghraib, is,
as we speak, planning to kill Americans and that nothing
gleaned from the use of coercive interrogation techniques will
be of any significant use in forestalling this calamitous
eventuality.
Torture degrades our image abroad and complicates our
working relationships with foreign law enforcement and
intelligence agencies. If I were the director of marketing for
al Qaeda and intent on replenishing the ranks of jihadists, I
know what my first piece of marketing collateral would be. It
would be a blast e-mail with an attachment. The attachment
would contain a picture of Private England pointing at the
stacked, naked bodies of the detainees at Abu Ghraib. This
picture screams out for revenge, and the day of reckoning will
come. The consequences of coercive intelligence gathering will
not evaporate with time.
I am hopeful that this Committee will use its oversight
responsibility judiciously and try to move the debate in the
direction of the prohibition of coercive interrogation
techniques. This debate is a crucial one, and I know each
member of the Committee understands that. The decisions you
make will have a far-reaching impact on our national security.
Proponents of the ticking bomb scenario seek to forestall
discussions on interrogation techniques by ratcheting up the
intensity of the debate to panic mode. There simply is no time
to talk to a terrorist who might have information about an
impending attack.
Senator Feinstein. Mr. Cloonan, I hate to do this because
your statement is truly an excellent one and you are delivering
it very well. But the time is running out on the vote, as you
might be able to tell. So if you will permit me, I am going to
recess the hearing, allow you to be first up to finish at 2
o'clock, and we will proceed from that point on and, I think,
have a very interesting afternoon.
So I apologize to the three of you, but it is the way of
the Senate. Thank you. This meeting is recessed until 2 p.m.
[Whereupon, at 11:35 a.m., the Committee was adjourned, to
reconvene at 2 p.m., this same day.]
AFTERNOON SESSION [2:07 p.m.]
Senator Feinstein. I am going to reconvene the hearing, and
I am particularly thankful to Senator Whitehouse for being
here, because we have an Intelligence Committee meeting that I
know he very much wants to attend. And I want to make another
apology to the witnesses. We had our votes at 11 o'clock, and
it is my information, it came to my attention that there is
going to be an objection on the Republican side to committees
meeting. So we may have to stop. But then the Majority Leader
may be able to recess so that this testimony can be taken.
I feel very strongly that this is an important subject, and
I feel very strongly that we need to prepare a record and that
we need to come to grips with what is happening out there and
make some changes. And so I think this morning's hearing was
helpful in that direction, and, Mr. Cloonan, you were
concluding. I would like to give you the opportunity to
conclude, and then we will move to Mr. Sands and to Professor
Heymann.
Mr. Cloonan. Thank you, Senator. I will be very quick with
this.
When I left off, I wanted to start again. Proponents of the
ticking bomb scenario seek to forestall discussions on
interrogation techniques by ratcheting up the intensity of the
debate to panic mode. There simply is no time to talk with a
terrorist who might have information about an impending attack.
Lives are at stake and the clock is ticking, so it just makes
sense to do whatever it takes to get the information.
Experienced interrogators do not buy this scenario. They know
that a committed terrorist caught in this conundrum will seek
to throw his interrogator off the track or use it to his
propaganda advantage. ``Go ahead and kill me, God is great.''
Neither the ticking bomb scenario nor the idea of a torture
warrant makes sense to me.
To the best of my recollection, the first time I learned
that coercive interrogation techniques were being used on
detainees was in November 2001 at Bagram Air Base in
Afghanistan. One case I am personally aware of involved Ibhn
Sheikh Al-Libi, the emir of an al Qaeda training camp in
Afghanistan. The FBI agents on the scene were prepared to
accord Al-Libi the due process rights he might expect as an
American citizen. The agents concluded after questioning that
he would be a high-value and cooperative source of information
as well as a potential witness in the trials of Richard Reid
and Zacarias Moussaoui. Before the agents could proceed, a
robust debate ensued between the FBI and the CIA. The CIA
prevailed, and Al-Libi was rendered to parts unknown, possibly
Egypt. I do not know the exact nature of the information his
interrogation produced, but it is common knowledge that he has
since recanted all that he said. I feel that a very significant
opportunity to utilize the rapport-building approach was
missed.
Without compromising delicate investigations, I can tell
you that the FBI has amassed a considerable amount of reliable
information on al Qaeda using rapport building. I will not
attempt a full recounting in the interest of brevity, but here
are a few salient examples.
I personally learned that al Qaeda tried unsuccessfully to
obtain fissionable material in 1993 and that they experimented
with chemical and biological agents. I also became aware of how
they selected targets and conducted surveillance on them. And I
learned of their intentions to use airplanes as weapons before
this became a deadly reality. These interrogations also yielded
information about al Qaeda's finances, recruiting methods, the
location of camps, the links between al Qaeda and Hezbollah,
bin Laden's security detail, and the identities of other al
Qaeda members who were subsequently indicted in absentia and
remain on the FBI's most wanted list. I am convinced of the
efficacy of rapport-building interrogation techniques by these
and other experiences.
Senator and gentlemen of the Committee, let me say that my
heart tells me that torture and all forms of excessive coercion
are inhumane and un-American, and my experience tells me that
they just don't work.
With that, I conclude my comments and welcome your
questions.
[The prepared statement of Mr. Cloonan appears as a
submission for the record.]
Senator Feinstein. Thank you very much, Mr. Cloonan.
Professor Sands.
STATEMENT OF PHILIPPE SANDS QC, PROFESSOR OF LAW AND DIRECTOR
OF THE CENTRE OF INTERNATIONAL COURTS AND TRIBUNALS, UNIVERSITY
COLLEGE LONDON
Mr. Sands. Madam Chairwoman, honorable members of the
Committee, it is my privilege and honor to appear before you.
As Professor of Law at the University of London and as a
practicing member of the English Bar, it may be said that I
appear before you as something of an outsider. I hope you will
bear in mind that I am from a country that is both friend and
ally, that shares this country's abiding respect for the rule
of law, and that has had its own long, painful experiences of
dealing with the very real threat of terror. I have come to
know America well over more than two decades, since I was a
visiting scholar at Harvard Law School. I then taught at Boston
College Law School and at NYU Law School. I happen to be
married to an American. And I am deeply proud of the fact that
my three children share British and American nationality.
A few weeks ago, I published an article in Vanity Fair,
``The Green Light,'' and my new book, ``Torture Team: The
Rumsfeld Memo and the Betrayal of American Values.'' These both
tell an unhappy story: the circumstances in which the U.S.
military was allowed to abandon President Lincoln's famous
disposition of 1863, that ``military necessity does not admit
of cruelty.'' This Committee will be very familiar with those
events since it was a focus of the judicial confirmation
hearings for William J. Haynes II in July 2006. You will recall
that on December 2, 2002, on the recommendation of Mr. Haynes,
Secretary Rumsfeld authorized the use of new, aggressive
techniques of interrogation on Guantanamo Detainee 063. It is
the famous memo, the one in which Mr. Rumsfeld wrote: ``I stand
for 8 to 10 hours a day. Why is standing limited to 4 hours? ''
My book tells the story of that memo, the circumstances in
which it came to be written, relied on, and rescinded, and how
the techniques migrated. It is a snapshot of the subject of
these hearings. To write the book, I journeyed around America,
meeting with many of the people who were directly involved. I
met a great number and was treated with a respect and
hospitality for which I remain very grateful. Over hundreds of
hours, I conversed or debated with, amongst others, the
combatant commander and his lawyer at Guantanamo, Major General
Dunlavey and Lieutenant Colonel Beaver; the Commander of United
States Southern Command, General Hill; the Chairman of the
Joint Chiefs of Staff, General Myers; the Under Secretary of
Defense, Mr. Feith; the General Counsel of the Navy, Mr. Mora;
and the Deputy Assistant Attorney General at DOJ, Mr. Yoo. I
met twice with Mr. Haynes who, along with the Vice President's
counsel, Mr. Addington, took a central role on the key
decisions. I also met twice with Spike Bowman, the FBI Deputy
General Counsel who received complaints from Guantanamo and
took them to DOD. From these and many other exchanges, I pieced
together what I believe to be a truer account than that which
has been presented by the administration. In particular, I
learned that in the case on which I focused, the aggressive
techniques of interrogation selected for use on Detainee 063
came from the top down, not from the bottom up; that they did
not produce reliable information, or indeed any meaningful
intelligence; and that they were strongly opposed by the FBI.
My account is consistent, fully consistent with that of the
report recently published by the Inspector General at the DOJ,
on which we heard more this morning, although I do go further
on some points of detail, I suspect for jurisdictional reasons.
I did not have his limitations. I learned, for example, that
the concerns of FBI personnel at Guantanamo were communicated
directly to Mr. Haynes' office, in telephone conversations in
November and December 2002 between Mr. Spike Bowman and, first,
Mr. Bob Dietz; then Mr. Dan Dell'Orto, who was then Mr. Haynes'
deputy and is now his acting successor; and third, Mr. Haynes
himself. Mr. Bowman told me it was ``a very short conversation,
he did not want to talk about it all, he just stiff-armed me.''
You can find a full account of that at pages 112 to 121 of the
U.S. edition of my book.
My conclusion, taking into account my conversations with
Mr. Haynes, is that he was able to adopt that approach because
by then, contrary to the impression he sought to create when he
appeared before this Committee 2 years ago, he had knowledge of
the contents of the DOJ legal memos written by Jay Bybee and
John Yoo on the 1st of August 2002, memo No. 1 of which was
most certainly intended for use also by the DOD.
On the basis of these conversations, I believe that the
administration has spun a false narrative. It claims that the
impetus for the new interrogation techniques came from the
bottom up. It is not true. The abuse was the result of
pressures driven from the highest levels of Government. It
claims the so-called torture memo of the 1st of August 2002 had
no connection with policies adopted by the administration.
That, too, is false, as it is that memo that truly provided
cover for Mr. Haynes. It claims that in its actions it simply
followed the law. To the contrary--
Senator Feinstein. I must interrupt you. Apparently, the
Republican Leader has just objected to Committees proceeding,
so for the moment, we will have to stop. And we will know as
soon as it is acceptable to go ahead.
Mr. Sands. Thank you, Madam Chair.
Senator Feinstein. Thank you.
[Recess 2:15 p.m. to 2:21.]
Senator Feinstein. The Majority Leader has just recessed
the Senate so that we are now able to proceed. So, Mr. Sands,
please proceed with your testimony.
Mr. Sands. Thank you, Madam Chairwoman. I will try to not
double up what I have already done.
I was restating the arguments of the administration and
indicating the extent to which I feel those are not accurate.
The administration claims, for example, that in its actions, it
simply followed the law. To the contrary, the administration
consciously sought legal advice to set aside international
constraints on detainee interrogations, without apparently
turning its mind to the consequences of its actions. In this
regard, the position adopted by the Pentagon's head of policy
at the time, Mr. Feith, in failing apparently to turn his mind
to the key issues, appears most striking.
As a result of all of this, Common Article 3 of the Geneva
Conventions was violated, along with provisions of the 1984
Convention prohibiting torture. The specter of war crimes was
raised by United States Supreme Court, and in particular by
Justice Anthony Kennedy, in the 2006 judgment in Hamdan v
Rumsfeld. That judgment corrected the illegality of President
Bush's determination that none of the detainees at Guantanamo
had any rights under Geneva.
Madam Chairwoman, honorable members of the Committee, this
is an unhappy story. It points to the early and direct
involvement of those at the highest levels of Government, often
through their lawyers. When he appeared before this Committee
in July 2006, Mr. Haynes did not share with you his
involvement--and that of Secretary Rumsfeld--which began well
before that stated in their official version. He did not tell
you, for example, that in September 2002 he had visited
Guantanamo, together with Mr. Gonzales and Mr. Addington, and
discussed interrogations. This is not, sadly, only a story of
abuse and crime opposed by the FBI; it is also a story about a
cover-up.
Chairman, for what purpose was this done? The
administration claims that coercive interrogation of Detainee
063 produced meaningful information. That is not what I was
told by those I interviewed. The coercive interrogations were
illegal, they did not work, they have undermined moral
authority, they have migrated, they have served as a recruiting
tool for those who seek to do harm to the United States and to
Britain, and they have made it more difficult for allies to
transfer detainees and to cooperate in other ways. They have
resulted in the very opposite of what was intended,
contributing to an extension of the conflict and endangering
the national security of this country. Astonishingly, on May
the 14th last, the Pentagon announced that charges against
Detainee 063 were being dropped. He is now, apparently,
unprosecutable. It is not clear what future he has.
These unhappy consequences mirror Britain's experience in
using similar techniques against the IRA in the early 1970s,
and these were widely believed to have extended the conflict.
The five techniques, as I referred, more or less identical to
those used here, were very soon abandoned, but not before great
damage was done. They have never been picked up again. Across
the political spectrum, from left to right, in Britain there
exists a unanimous belief that such techniques are wrong and
can never be justified. Coercive interrogation, aggression, and
torture must never be institutionalized. The view in Britain is
that once the door is open, it is difficult, if not impossible,
to close. And that is why, with the greatest respect to
Professor Heymann, we have turned our back firmly against the
institutionalization of coercive interrogation that appears to
have been recommended by some in his report of 2000. And that
is why even more strongly we are so vigorously opposed to the
related idea of torture warrants, as floated by Professor
Dershowitz, an idea which, as I describe in my book, and
somewhat to my surprise, directly undermined the efforts of
those who opposed the abuse at Guantanamo.
In conclusion, Chairwoman, I can put it no better than
George Kennan, the great American diplomat. In 1947, he wrote a
telex that issued this warning in relation to a perceived
Soviet threat: ``[W]e must have courage,'' he wrote, ``and
self-confidence to cling to our own methods and conceptions of
human society. [T]he greatest danger that can befall us . . .
is that we shall allow ourselves to become like those with whom
we are coping.''
Chairwoman, honorable members of the Committee, no
country--no country--has done more to promote the international
rule of law than the United States of America. Uncovering the
truth is a first step in restoring this country's necessary
leadership role; in undoing the great damage that has been
caused; and in providing a secure, sustainable, and effective
basis for responding to what is a very real threat of
terrorism.
I thank you for allowing me the opportunity to make this
introductory statement, and, of course, I would be delighted to
take your questions.
[The prepared statement of Mr. Sands appears as a
submission for the record.]
Senator Feinstein. Thank you very much, Mr. Sands.
Professor Heymann, it is good to see you again, sir. Please
proceed.
STATEMENT OF PHILIP B. HEYMANN, JAMES BARR AMES PROFESSOR OF
LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS
Mr. Heymann. Thank you, Madam Chairwoman.
I have been viciously defamed by Professor Sands and maybe
the Ranking Minority Member. I am of course, not serious but
joking. I think I am here under the illusion that I--that you
wanted someone on the panel who would defend torture and cruel,
inhuman, and degrading or highly coercive techniques. That's
not me.
What Juliette Kayyem and I recommended and published was
something that takes the step that I think has not been
discussed at all today, Madam Chairwoman, and I think it is an
essential one. We recommended that the Attorney General should
propose to the President a list of permissible techniques
consistent with the ban on torture and consistent with the ban
on cruel, inhuman, and degrading treatment; and that there be
no exception to this list. The United States would not do
anything that was torture and it would not do anything that
violated the ban on cruel, inhuman, and degrading treatment,
which means under the Senate's reservation it would not do
anything that the Supreme Court would hold ``shocked the
conscience.'' It does not say of whom. Presumably of the
American people.
We then went on and said that that list has to be made
available to the appropriate committees of the Senate and the
House. It cannot be kept secret from them.
We said if anybody is ever going to engage in an
interrogation technique that is not on that list, it would have
to be on a published finding by the President that lives were
imminently at stake, that this individual had the information
that could save lives, and that there was no other technique
that would work. In short, I think that our proposal was more
protective than any proposal that has been made to this
Committee, including today.
My written testimony is very consistent with Mr. Cloonan's
testimony and Professor Sands'. It says that we do not need
torture. I have met with the leading interrogators in France,
Britain, Spain, Israel, the CIA, the DOD, the FBI over a 3- or
4-year period. I have to say that I agree with Mr. Cloonan's
description. But the problem that the Committee faces, the
problem that the Congress faces, is that the words saying what
is not permissible have lost their meaning. The administration
agrees that torture is absolutely forbidden with no exception--
in my testimony, I have quoted where they say that, ``no
exception''--but they do not regard waterboarding as torture.
And thus we have no idea what they regard as torture.
The Detainee Treatment Act of 2005 belatedly forbids all
forms of cruel, inhuman, and degrading treatment. But nobody
knows whether the steps that Inspector General Fine described--
putting in solitary confinement, environmental manipulation,
food changes, stress positions, prolonged shackling, sleep
deprivation--are cruel, inhuman, and degrading. They feel
pretty cruel to me. But the problem is that we are talking in
vague terms with no determinate meaning.
The only way for the United States to give determinate,
proud meaning to those terms is for either the Congress or the
President, with congressional oversight, to list what is
permissible. Nothing is permissible that is torture; but what
is torture and what is permissible under the category of non-
torture? That list must be made available to the Congress and
the administration must be bound by that list unless the
President himself says that we have an emergency so severe that
he has to depart from the list and why.
The President's argument has been that if you tell the
terrorists what can be done to them, they will be at an
advantage in meeting that in interrogation. Well, the Congress,
the relevant committees of Congress, will know what is on the
list. The terrorists will not.
I agree with Mr. Cloonan's statement and the statement of a
number of others that the ticking bomb case is largely a red
herring. We have not had a situation in the last 7 years since
September 11th in which we have been able to identify an
individual who has information that would prevent a lethal
attack of a substantial size and that could not--and
information that cannot be obtained as well in a different way.
That particular event is a difficult one. It is a
philosophically hard one. It is the example that all of the
supporters of coercive interrogation argue from. We dealt with
that--not in the only way. We dealt with that by saying no
torture, but you could, on the President's order, if all those
conditions were met and if he filed a statement to that effect,
he could depart from a list of techniques to choose others that
were also consistent--consistent--with the prohibition of
cruel, inhuman, and degrading. We did not give him a lot of
leeway. We gave him very little leeway. But the real ticking
time bomb situation has not happened, and it is not likely to
happen, and we should not pay much attention to that highly
unusual possibility in defining what the American rules are. We
tried to leave a little bit of leeway. You can do it other
ways, too.
I think I can stop there, but, again, my point is that we
are at a stage now where everybody agrees and says that torture
is forbidden. And now the Congress has said, without providing
a remedy, in 2005 that anything cruel, inhuman, and degrading,
meaning ``shocking the conscience'' from the Supreme Court
precedent, is forbidden. But we have no agreement on what
``shocking the conscience'' means or what ``torture'' means and
no possibility of the courts filling in that gap. That should
not be a decision made by the President alone. It is not his
conscience that has to be shocked. It is the conscience of the
American people, and the Congress can speak to that.
[The prepared statement of Mr. Heymann appears as a
submission for the record.]
Senator Feinstein. Thank you very much, Professor Heymann.
Just a comment and then I want to recognize Senator Whitehouse,
who has done so much work in this area.
I think--well, Senator, I will save my comment. I was just
going to say the thing that we would replace this with is the
Army Field Manual, which prohibits eight specific interrogation
tactics and has some 18 to 21--I forget exactly how many--
various strategies which are comprehensive and individuals are
taught how to do what Mr. Cloonan essentially spoke about. And
we believe that there should be one standard throughout our
entire Government, and because this is accepted now by the
military, has been worked on for 4 years, revised just about a
year ago, that it is really the best way to proceed.
Let me turn it over to Senator Whitehouse.
Senator Whitehouse. Thank you, Madam Chair. We are having a
slight delay in the Intelligence Committee, so I was able to
come back for a moment. We have OLC in the Intelligence
Committee, so torture is the theme throughout this building
today.
First, I just want to say thank you to Special Agent
Cloonan for his career of service to our country. Anybody who
has read ``The Looming Tower'' and seen the references to him
in there knows how hard the FBI worked towards the end to try
to be prepared for the eventuality that became the 9/11
disaster, and I just want to express my personal appreciation
to you for your service.
I will ask again the question that I asked before. You had
the Vice President of the United States publicly comparing
waterboarding--this is a term that most Americans were not
particularly familiar with--to a dunk in the water. You had the
Secretary of Defense of the United States of America comparing
the stress position interrogation method to himself standing at
his desk. Would you first give me your view on the extent to
which either of those comparisons fairly or accurately
represents the effect and substance of those two methods?
Anyone who feels qualified to answer.
Mr. Cloonan. To your question, Senator, the issue of stress
positions, waterboarding, whether it is a short dunk or whether
these prolonged stress techniques amount to torture in my view,
I--
Senator Whitehouse. My question is: Do you think that is a
fair way to describe--
Mr. Cloonan. I do not think it is a fair way. I do not
think it is a fair way of describing it. I mean, waterboarding
is an extreme interrogation technique. It is torture. Those who
have been submitted to it will tell you so. I have never
undergone it myself. I know a number of people who have.
The stress positions that you were talking about are
extreme, being hung from the ceiling and various other things.
Those are very, very extreme and counterproductive. So they are
not things that we should treat lightly. The way they were
described, I would disagree with the way they were described.
Senator Whitehouse. Professor Sands, do you disagree with
that?
Mr. Sands. I agree with what Mr. Cloonan has said. I would
start this from the proposition of how we would look at it
dealing with the situations in the U.K. We have English law. We
have international obligations. We look to our international
obligations. There is no one I can think of in the United
Kingdom who would not immediately conclude that the use of
waterboarding, which is creating the misperception of
suffocation, is torture in all circumstances, and we are,
frankly--
Senator Whitehouse. The reason that I am asking this--I
have limited time, so forgive me if I jump in from time to
time. The reason I am asking this is that we have two very
significant officials of the Government of the United States of
America who have apparently a fairly considerable misperception
of what the techniques are that they authorized. And it strikes
me that if they have authorized these techniques under the
misperception that you all have identified, that is a pretty
significant failure of communication and knowledge. It is
ignorance of a very high order at a very high level about a
very significant matter.
The only alternative, which is not any better, is that they
actually do know how devilish these techniques are and how
devilish their application can be, and they deliberately sought
to mislead the American people about exactly what America was
now responsible for doing. And I do not see a third road. It
seems it is either--you either knew it or you did not. You
either should have known or you should have told the truth.
Mr. Sands. I regret to say I think the answer is that your
first option is excessively generous. Your second option is the
one that I would go for, and I think I have got a pretty
reasoned basis for doing that.
The administration, if you go back to December 2001,
January 2002, February 2002, forms the clear view that the
Geneva Conventions, and in particular Common Article 3--
outrages against human dignity, cruel, degrading treatment, et
cetera, as well as torture--stood in the way of aggressive
techniques of interrogation. And they, therefore, designed an
approach led by people like Doug Feith to set aside the Geneva
Conventions. And that is consistent with the conclusion that
they knew very well what they were doing and that the use of
this language was actually intended to signal to people on the
ground that the people at the highest levels have no problem
with it.
Senator Whitehouse. Green-lighted it, to use your phrase.
Professor Heymann, you are now a professor of law at
Harvard University. You have served in the United States
Department of Justice. Very briefly, the Office of Legal
Counsel, what is its tradition and history within the
Department? What has its reputation been prior to the Bush
administration?
Mr. Heymann. I think prior to the Bush administration it
had a very high--was held in very high repute for the fairness
and objectivity of its opinions.
Senator Whitehouse. Have you had the occasion to review the
unclassified opinion authorizing torture?
Mr. Heymann. Yes, I have.
Senator Whitehouse. Have you had occasion to review the
sourcing of the definition of ``severe pain'' back into the
Medicare and Medicaid reimbursement statutes?
Mr. Heymann. Yes. I thought it was highly creative. It has
nothing--it is a totally impermissible reading of law.
Professor Sands had said to me earlier before you began how
much he enjoyed being at Harvard for a year because it brought
him into an open-minded and intelligent attitude towards what a
law means. This was totally beyond the pale.
Senator Whitehouse. Let me ask you this: Are you familiar
with the Fifth Circuit decision in United States v. Lee, in
which the Department of Justice in the 1980s brought a
prosecution against a Texas sheriff and two of his associates
for waterboarding prisoners in order to extract confessions
from them?
Mr. Heymann. The first time I heard of that was when you
mentioned it this morning. I did know that we have--we
prosecuted Japanese for war crimes for waterboarding after
World War II.
Senator Whitehouse. As a professor of law, would you
consider a case that addressed waterboarding in the United
States and described it as water torture to be on point to the
question whether waterboarding was torture as a matter of law?
Mr. Heymann. The Fifth Circuit case, Senator?
Senator Whitehouse. Would you consider it an on-point case
to the questions they are trying to answer?
Mr. Heymann. Not having read it, it sounds, as you describe
it, very close.
Senator Whitehouse. Would it surprise you that the Office
of Legal Counsel would, on the one hand, find precedent in
Medicare and Medicaid reimbursement law and, on the other hand,
not find the case that is directly on point that was actually
prosecuted by the Department of Justice itself?
Mr. Heymann. I think that the Office of Legal Counsel was
working hand in hand with the counterterrorism policy officials
in the White House, was consulting with them regularly, and had
very much in mind what decision they intended to reach and were
expected to reach.
Senator Whitehouse. Thank you very much.
Senator Feinstein. Thank you very much, Senator.
Mr. Sands, if I might, the Bush administration has said
that the coercive intelligence techniques and torture used at
Guantanamo originated from the military interrogators and JAG
lawyers at Guantanamo, and you speak about that in your
articles and your book. In testimony before this Committee,
former DOD General Counsel Jim Haynes said, and I quote, that
he ``did not seek a written opinion from the Department of
Justice'' on coercive interrogation techniques at Guantanamo.
He also said that he ``did not have a copy of it,'' and ``it''
is the August 1, 2002, Yoo memo, and ``did not shape its legal
analysis.''
You have interviewed Mr. Haynes on how many occasions?
Mr. Sands. I have met with him on two occasions.
Senator Feinstein. On two occasions. Did you ask him if he
had read or was otherwise aware of the conclusions in the
August 1, 2002, OLC memo before recommending that Secretary
Rumsfeld authorize coercive interrogations at Guantanamo?
Mr. Sands. Chairman, I wonder if I can come to this in a
roundabout sort of way.
Senator Feinstein. Okay. Any way you--
Mr. Sands. I am very familiar with his testimony before
this Committee on, I think, the 11th of July--
Senator Feinstein. ``His testimony'' being Mr. Haynes'?
Mr. Sands. Mr. Haynes' testimony of 11th of July 2006. The
one question he was not asked was whether he had knowledge of
the contents of the memo of the 1st of August 2002. I
established to my complete satisfaction that he did have
knowledge of the contents of that memorandum, and I established
that on the basis of my conversations with General Myers, with
General Hill, with Mr. Feith, amongst others.
I then had occasion to meet with--
Senator Feinstein. You understand you are under oath.
Mr. Sands. I then had occasion to meet with him, and I met
with him on an undertaking that although the fact of our
meeting would not be confidential, I gave him an undertaking
that the conversations were off the record and, therefore, I
did not in the book make any reference to the conversations
that we had.
What I did was in the penultimate chapter indicate in the
last sentence that my conclusions would take fully into account
everything I had learned from him, and in the last chapter, I
set out very clearly my view that he had knowledge of the
content--he, Mr. Haynes, had knowledge of the contents of that
memo, certainly by the time he went down to Guantanamo in
September 2002.
Mr. Heymann. Madam Chairwoman?
Senator Feinstein. Yes, Professor Heymann?
Mr. Heymann. I would like to speak up a little bit for Jim
Haynes.
Senator Feinstein. All right. Please do. That is fine.
Mr. Heymann. When Juliette Kayyem and I wrote our
recommendations on the ten hardest questions--highly coercive
interrogation, detention without judicial trial, targeted
killings, et cetera--I sent them to Jim Haynes, and he asked me
if I would come down and present them to Attorney General
Gonzales and Harriet Miers, the White House counsel. I did
that, and I think he did it because he thought that it was time
to look at those questions in a less frightened, less knee-jerk
way. And I appreciated it very much. I thought he was trying to
move the administration--unsuccessfully, I may say.
Senator Feinstein. Okay. Thank you.
I would like to proceed along this line for a moment. This
morning I mentioned the special agent's memo to Mr. Bowman, the
Deputy General Counsel for national security law at the FBI.
Mr. Sands, did Mr. Bowman tell you that he contacted Jim Haynes
and other officials at DOD earlier in November and December
2002 about the concerns relating to coercive interrogation
techniques at Guantanamo?
Mr. Sands. He did. Mr. Bowman told me very clearly--and I
met with him twice, and I went in great detail over these
issues and managed to ratchet down the dates. He spoke first to
his friend Bob Dietz, who was a senior intelligence person in
DOD, whom he knew well; and I described that conversation in
the book. Mr. Dietz evidently told him that the person who was
dealing with this was Mr. Dell'Orto, so when he received a
further complaint from Guantanamo, by now we are about the 19th
or so of November. So this is well before the memorandum was
written on the 27th of November 2002. He contacted Mr.
Dell'Orto. Mr. Dell'Orto evidently told him he would look into
these things, but most significantly, Mr. Dell'Orto, who was,
of course, Mr. Haynes' deputy, confirmed that he already had
knowledge that there were concerns about what was happening.
Mr. Dell'Orto did not then get back to him. Mr. Bowman told me
he did not read anything negative into that because he just
assumed it was being sorted out. It did not occur to him for a
moment that there was actual systematic abuse taking place.
Unfortunately, he then received a further communication
from an FBI agent down at Guantanamo, and at some point in
early December--he could not remember the specific date; he
just remembered--telling me, ``I remember that there was a lot
of snow on the ground on that date.'' He called Mr. Dell'Orto.
Mr. Dell'Orto was not there. He spoke to Mr. Haynes, and Mr.
Haynes fobbed him off. On that basis, I think it is pretty
clear on Mr. Bowman's account that Mr. Haynes would have had
knowledge of concerns of what was going on down at Guantanamo
by the time he signed his memorandum on the 27th of November
and further confirmation after that date and before it was
rescinded.
Senator Feinstein. Okay. Now, one of the presiding
concepts, I think, of this administration has been that the
Article II powers of the President, the Commander-in-Chief
authority derived thereof, is such that it virtually overrides
anything. It has been asserted that the Geneva Conventions do
not apply to detainees, that the President has the
constitutional authority to violate the Convention Against
Torture and the U.S. torture statute, and that the President's
Executive power essentially trumps the powers of the other
branches of Government in times of war.
Professor Heymann, I would like to get your view of that
from a constitutional, legal point of view.
Mr. Heymann. Well, I am afraid that a great deal of very
detailed work, hundreds and hundreds of pages have been done by
my colleague, David Barron and by Marty Lederman. I have a
quite different view of the whole thing, and I can state it
very simply.
Number 1, I do not think the problem is a Commander-in-
Chief problem. I think the President may have to violate a
statute if we have an earthquake, like China has just had; if
we have an outbreak of the plague or a smallpox epidemic; if we
have a flood in New Orleans; that statutes are not themselves
absolute. Every country that I know of except the United States
has emergency powers. We do not have emergency powers, and we
are probably better off for not having emergency powers in the
Executive. But I think that the problem that we then have to
deal with as a Nation is what do we want to have happen when
there is a very grave emergency and there is a law that stands
between the Executive and dealing with it.
If I can say one other thing, as to the Commander-in-Chief
powers, I think it cannot--I do not think the Framers of the
Constitution, who separated powers and gave great powers in
Article I to the Congress and in Article III to the Supreme
Court, and who would not pass the Constitution without a Bill
of Rights, could not have agreed that the President can decide
when he can set aside those protections that they insisted on
by deciding that we were at war. I think a totally clear
decision by the Congress--it does not have to be a declaration
of war--would have to be necessary. It is hard to imagine the
writers of the Constitution saying we want this protection,
that protection, and this and that, all against the Executive
power, and then saying, However, when the President says there
is a war, he can ignore it as Commander-in-Chief.
Senator Feinstein. Thank you very much. That is really the
heart of the argument of much of what has gone on.
I want to be concise here because the Senate is in recess,
and I do not want to keep--there are important issues on the
floor, so, Professor Sands, do you have a comment you would
like to make?
Mr. Sands. Very briefly on that, and I am not an expert on
the U.S. constitutional provision so I cannot express any view
on that. But I think it is also important to put this in an
international context. We are dealing with treaties from which,
particularly in relation to torture, there is no national
security or emergency exception. The ban is absolute. So
whatever may be the position under the domestic law within the
United States--or indeed any other country--as a matter of
international law you violate that law and you expose yourself
to the risk of international criminality and international
investigation. That is the first point I would make.
The second point is this: Imagine the same argument being
made by a foe of the United States. Why can't the President of
Iran or the President of some other country that may from time
to time be feeling hostile toward the United States--and,
actually, we too face such a national security emergency--that
we are going to justify the use of these techniques? And the
danger with the argument in a globalized world is that by
adopting these techniques domestically within the United
States, you expose U.S. troops to their use internationally.
And no country is more peripatetic than the United States.
Senator Feinstein. Thank you.
I would like to ask one question, if I might, of Mr.
Cloonan. Mr. Cloonan, you were speaking in your comments that
you gave earlier to the effect that there are certain instances
where certain kinds of intelligence, SIGINT, other kinds of
intelligence, have produced information that really was
valuable. Do you know offhand of any cases where torture as we
mean it in terms of the broader expanse of enhanced
interrogation techniques has actually produced critical
intelligence information?
Mr. Cloonan. No, Senator, I don't.
Senator Feinstein. So it is your belief, as someone who has
looked at this, that most of it has come from other means of
intelligence gathering rather than HUMINT?
Mr. Cloonan. I would say--
Senator Feinstein. Other than torture, let me put it that
way.
Mr. Cloonan. Yes, I understood what you said. Yes, back to
my statement, yes, a lot of good information has come from the
techniques that you have discussed or the technological assets
we have deployed. But most of the good stuff, Senator, comes
from good old field work and from that rapport-building
approach that I alluded to. That is where the rubber meets the
road. That is when the skill of a good interrogator who is
confronted with this issue, who sits across the table from a
member of al Qaeda, as I said in my statement, a person who has
pledged their allegiance to bin Laden, a person who knows the
information, that is where it works.
This is the challenge that we have, and I think that when
you do and are successful at getting that information, it is
unbelievable, Senator, how much time and effort you save, how
much resources you save from chasing after fruitless leads. And
if you will pardon the expression, when you do reach that point
in an interrogation and that subject is broken--and I have seen
it happen any number of times--there is literally a physical
reaction. And you know at that point that you have hit it. You
know that you have hit a home run. And in my particular case,
dealing with these people from al Qaeda, Egyptian Islamic
Jihad, and other groups, they almost feel in their heart that
they have a moral obligation to cooperate with you.
Senator Feinstein. How many al Qaeda members did you
interrogate?
Mr. Cloonan. Many.
Senator Feinstein. Give me a number.
Mr. Cloonan. I would say people who pledged ``bayat,'' who
were members of al Qaeda, I would say half a dozen.
Senator Feinstein. And how many--
Mr. Cloonan. There were many that were on the periphery.
Senator Feinstein. Right. Of that half dozen, how many were
prosecuted?
Mr. Cloonan. Several, and some were--
Senator Feinstein. Several.
Mr. Cloonan. Three or four, and some were put into the
witness protection program.
Senator Feinstein. And the three or four that were
prosecuted, what was the verdict? Were they convicted?
Mr. Cloonan. They are guilty. In fact, everybody that we
spoke to and everybody that agreed to cooperate with us walked
into the Southern District of New York in a sealed courtroom
and pled guilty. So we were very, very successful in that. I
mean, we had a wonderful team of prosecutors. And it is
amazing, Senator, when you sat, again, in these situations and
you explained to these people from al Qaeda what the
consequences were going to be, you would think that the
cooperation would end right there. It did not. They understood
what the consequences were going to be, and in some instances,
their exposure was zero to life. And I can assure you that
pleading guilty and being sentenced to life in prison and
spending a life at Supermax in Florence, Colorado, is something
that is incredibly powerful.
And I alluded in my statement, we have a tendency sometimes
to sort of poke fun at our legal system. We complain about it.
When you have a member from al Qaeda and you literally explain
to them what their rights are and that they understand that
they do not necessarily have to speak to you, they are
perplexed by that. They are troubled by it. And, frankly, it
starts a dialogue. And when you have the opportunity to take
information that the United States Government has in its
possession under the rules of discovery and you give those to
an al Qaeda member to look at, for example, and he thinks this
is an amazing system, the United States Government is allowing
me to see what it has against me, and for them, to correct what
you think to be accurate, again, is amazing.
Senator Feinstein. I cannot help but contrast what you are
saying with Khalid Sheikh Mohammed, who has admitted that he
was the perpetrator of the murder of the Wall Street Journal
reporter Danny Pearl, who has admitted that he planned 9/11,
and yet would cooperate in no way, shape, or form and wants to
die.
Mr. Cloonan. Well, as you probably recall, Senator, Khalid
Sheikh Mohammed was indicted in the Southern District of New
York in 1996 for his role in the Bojinka plot. So the FBI in
New York knew an awful lot about Khalid Sheikh Mohammed, and
that was a real difficult situation for us, the fact that we
did not have access to him right away.
I think when Khalid Sheikh Mohammed, frankly, gave his
interview to Al Jazeera, you might recall, on the first
anniversary of 9/11, I think you saw in that that he was
celebrating the fact. I had an opportunity, frankly, to look at
some of the videotape when he was first detained by the
Pakistani authorities. And it was my conclusion, just based on
looking at him very quickly, he was not going to be a tough nut
to crack. This is a man who is very proud of what he did. He
was celebrating what he did. This is what his life was. And all
you had to do, frankly, is have the opportunity to let him tell
his story. And I believe that we did not have to engage in any
techniques that are alleged to have occurred against him,
waterboarding being one.
Senator Feinstein. Thank you very much.
I want to take this opportunity to thank the three of you
and once again to apologize for the vagaries of the United
States Senate and the schedule. I am very grateful to you for
being here.
Mr. Cloonan, I want to echo what Senator Whitehouse said to
you. Thank you for your excellent service to this country.
Dr. Sands, thank you for, again, crossing the ocean to be
here today. It is very much appreciated.
And, Professor Heymann, I am sure I will see you again and
again before this Committee. Thank you very much for your
excellent testimony.
Thank you, gentlemen, and the hearing is adjourned.
[Whereupon, at 3:02 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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